The petitioners are Inspectors of Boilers, Industries Department,. Government of Punjab, Lahore.
Their conditions of service are regulated by Punjab Industries and Mineral Development Department Recruitment Rules, 1989. There is a post of Chief Inspector of Boilers (BS-18) in the said Department. Mr. Farid Iqbal, Deputy Chief Inspector of Boilers was appointed as Chief Inspector of Boilers on current charge basis till 9.3.2007 i.& date of his retirement. As the said post was becoming vacant, the petitioners made a representation for appointment through promotion for amongst in-service Inspector of Boilers possessing requisite qualifications. The Directorate of Industries, Punjab thus proposed through a working paper for promotion to one post of Chief Inspector of Boilers (BS-18) and one post of Deputy Chief Inspector of Boilers (BS-17) on regular basis for placing the same before the Departmental Promotion Committee". It is evident from letter dated 24.2.2007 that appointment of Mr. Farid Iqbal was also approved on contract basis with effect form 10.3.2007 for a period of one year in relaxation of the Re-employment Policy, 2003 upon attaining the age of superannuation on 9.3.2007. Order dated 5.3.2007 was issued accordingly as per Chief Minister's Directive dated 24.2.2007. He is said to have assumed charge but could not hold the post fora long as on 24.3.2007 one Muhammad Nawaz, Assistant Engineer (Mechanical) (BS-17), Sheikh Zayed Medical Complex, Lahore, was appointed as Chief Inspector of Boilers (BS-18), Directorate of Industries, Punjab, Lahore, on deputation basis for a period of three years or till the arrival of a regular incumbent whichever is earlier under the provision of the Deputation Policy".
Thus, the contractual appointment of Mr. Farid Iqbal was terminated with immediately effect on the same date. This prompted Farid Iqbal to agitate the matter, who filed W.P. No, 2824/2007 before this Court but in the meantime he succeeded in obtaining another Directive dated 28.3.2007 for continuation of his contract for one year. He accordingly withdraw his petition on 29.3.2007. Order dated 30.4.2007 was then issued cancelling the appointment of Muhammad Nawaz repatriating him to his parent Department.
Muhammad Nawaz has filed W.P. No, 2445/2007 qua the same. Since the controversy centers around the post of Chief Inspector of Boilers in both the petitions, the same have been heard together.
2. Parawise comments have been filed by the official respondents in both the petitions.
W.P. No, 3455/2007
3. This is petition by the Inspectors of Boilers serving the. Industries Department whose ultimate object is that the post of Chief Inspector of Boilers should be ,filled in accordance with Rules and Departmental Policy by declaring the appointment of Muhammad Nawaz (Respondent No, 4)
(petitioner in W.P. No, 4225/2007) as illegal and contrary to the rules. In the parawise comments, in essence; the case of the official respondents is that "Working paper in respect of Inspectors of Boilers including the petitioners for the Post of Chief Inspector of Boilers (BS-18) is under process in Industries Department. The case will be assessed as per Rules/Policy and the requisite Working Paper will be placed before the Departmental Promotion Committee for promotion of regular incumbent to the Post of Chief Inspector of Boilers (BS-19) in due course. If none is available by promotion, the Post of Chief Inspector of Boilers (BS-18) will be filled by initial recruitment in accordance with the Punjab Industries and Mineral Development Department Recruitment Rules, 1989". It is stated by the learned Law Officer that the post of Chief Inspector of Boilers will be filled up according to rules as per the above averments in the parwasie comments. The purpose of, the petitioners, thus, stand served inasmuch as the post will be filled up by promotion from amongst the eligible persons in accordance with: rules. So far as the other relief qua removal of Muhammad Nawaz respondent is concerned, his appointment dated 24.3.2007 already stand cancelled by means of order dated 30.4.2007.
This petition is, thus, disposed of in view Of the above.
W.P. No, 4225/2007.
4. Muhammad Nawaz petitioner was serving as Assistant Engineer (Mechanical) (BS-17) in Sheikh Zayed Medical Complex, Lahore, who appear to have approached the Chief Minister of the Province for his appointment as Chief Inspector of Boilers. A Director for his purpose was issued by the Chief Minister's Secretariat and summary was initiated by Secretary, Industries, Government of Punjab for his appointment till the arrival of the regular incumbent. He, thus, succeeded in seeking the termination of contract of Farid Iqbal and was appointed by order dated 24.3.2007 as Chief Inspector of Boilers on "deputation basis for a period of three years or till the arrival of a regular incumbent whichever is earlier under the provision of the Deputation Policy'. Ultimately, his appointment was cancelled vide order dated 30.4.2007 which is sought to be assailed by him primarily on the ground that the same is violative of the law inasmuch as that the said order has been made without hearing him and that before expiry of the period of deputation he could not be reverted to Sheikh Zayed Medical Complex.
5. It is evident from the material on record that Muhammad Nawaz had sought this appointment by devious means through the intervention of high ups and exertion of extraneous pressures. For his benefit, summary dated 19.2.2007 by the Secretary, Industries was put up as ,per Directive of the Chief Minister's Secretariat and order issued. The same officer i,e, Secretary, Industries later moved another summary dated 21.4.2007 highlighting the conduct of the petitioner in seeking the said appointment. It was noted that the Industries Department is of the considered view that in wake of the persistent political pressure the issue of appointment of Chief Inspector of Boilers has unnecessary become controversial'. It was urged that the Chief Minister may review his earlier decision. The said proposal was approved by the Chief Minister, resulting in cancellation of appointment of the petitioner on 30.4.2007.
6. Several precedents have been cited by the learned counsel in support of his contention that the petitioner has been condemned unheard. There can be no cavil that principles of natural justice i,e, audi alteram partem is of immense importance and none should be condemned unheard, but the conduct of the petitioner and his manoeuvering in seeking appointment also cannot be lost sight off. Instant is a case where a person sought appointment by mustering political support and influence into a cadred service regulated by Rules where the appointment can be made either by promotion from amongst Senior Inspectors of Boilers and if none is available for promotion then by initial recruitment. He was able to get himself appointed against a post of BS-18 although he was officer in BS-17. Through this indirect methodology he manoeuvered a promotion.
7. The record of the case leaves pathetic impression of a Government Department which is supposed to be run strictly in accordance with law/rules. The Supreme Court of Pakistan had taken note of such a situation and laid down principles and guidelines in Zahid Akhtar vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 Supreme Court 530). A portion from the relevant part, of the judgment reads as follows:- "We need not stress here that a tamed and subservient bureaucracy can neither by helpful to Government nor it is expected to' inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority not it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
The Government Departments are bound to follow the same. None appear to have cared to observe the law in this case. For me, it is difficult to reconcile, as to how a person who manipulated the things in order to get appointment over and above the law, can be allowed to retain such ill- gotten gains. Any person, who obtains a gain or benefit by resorting to extra-legal measures cannot legitimately complain when such a benefit is withdrawn or taken away.
8. Moreover, Sheikh Zayed Medical Complex has come up with the plea that the petitioner had "procured No Objection Certificate from the Assistant Administrator' f the Hospital to apply for the post in the service of Respondent No,
1. The petitioner did not disclose about his intention to joint the service of Respondent No, 1 on deputation. No NOC for deputation has been granted to the petitioner nor has he been relieved of his services." It is pointed out by the learned counsel for the Hospital that eversince the joining of the petitioner with the Industries Department the Hospital administration is facing difficulties and has not been able to make any arrangement for running its affairs. It is, thus, contended that he should either be reverted back to his service in the Hospital or he should sever his ties so that Hospital may advertise and make fresh appointment in his place.
The conduct of such a petitioner, as is evident from the material on record, indeed, does not entitle him to invoke equitable and discretionary jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 nor he is entitled to any. relief. There is no dearth of precedents that exercise of writ jurisdiction can be declined in appropriate cases even if the order is found to be without lawful authority. In Nawab Syed Raunaq Ali etc, vs. Chief Settlement Commissioner and others (PLD 1973 Supreme Court 236), it was held that the object of such jurisdiction was to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." It was further held that the Court could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction". In S. Mumtaz Ahmad Khan vs. Peshawar Development Authority and another (1998 SCM R 2745), the circumstances were to an extent identical to the instant case. In the said case, allotment of a plot by the Chief Minister was later withdrawn and cancelled. It was pleaded before the Court that such a withdrawal of allotment was made without hearing the appellant. It was observed by the Court that "exercise of Constitutional jurisdiction is a discretionary matter and the Court may decline to invoke the same even if an impugned order prima facie may be illegal. In our view it is not a fit case where the High Court should have invoked Constitutional jurisdiction, as by doing so the High Court would have approved the practice of having discretionary quota for allotment of plots which is against the tenets of Islam and also against the Constitutional provisions". The manner in which the petitioner got appointed as Chief Inspector of Boilers is evident from the material on record. The appointment was clearly violative of the relevant law/Rules. Thus, notwithstanding his complaint that before issuing order dated 30.4.2007 he has not been heard, I am not inclined to exercise writ jurisdiction in his favour.
As a result of the above, W.P. No, 3455/2007 stand disposed of in terms of para 3 above whereas W.P. NO. 4225/2007 is dismissed.