Through this Constitution petition, petitioner prayed for a declaration that the order dated 06.07.2007 passed by Respondent No, 3/Deputy District Education Officer (M), Fortabbas is without lawful authority and of no legal affect and the same be declared as such.
2. Vide order dated 18.12.2008, this Court directed Respondents No, 2 & 3 to submit the report & para-wise comments which have since been received. Report and para-wise comments show in vivid terms that on 30.03.2007, petitioner was appointed as Naib Qasid (BPS-01) on contract basis for a period of three years by the Deputy District Education Officer (M), Fortabbas. In faithful compliance of the order of appointment afore-noted, petitioner submitted his joining report on 14.04.2007.
3. It appears that some time back, on scrutiny made by the District Education Officer (M-EE), Bahawalnagar, it came to the light that appointment of the petitioner was irregular because before passing the said order of appointment on contract basis, the post was not advertised and thus, imparted instructions to the Deputy District Education Officer (M), Fortabbas, to withdraw or cancel the appointment order.
4. Para 9 of the petition has been answered as under:-- "The appointment of the petitioner was illegal/unlawful and cancelled on 06.7.2007 by the appointing authority (Competent authority) in the compliance of the order of next higher authority (the District Education Officer (EEM) Bahawalnagar), the Respondent No,
2. No comments."
This is a common ground between the two contesting parties that the petitioner worked in the Department for a period of 84 days and not only he has been thrown out of service but also salary for the said period has also not been paid.
5. Learned counsel for the petitioner contended with full vehemence that before passing the impugned order by which the appointment order of the petitioner has been rescinded, no notice whatsoever was given to him of being heard. Learned counsel further came-out with the plea that once the order has been acted upon between the parties, there was no power left available with the Departmental Authority either to withdraw or cancel the appointment order.
6. Conversely the learned Assistant Advocate General argued that since the appointment order was suffering from illegalities and irregularities, the Department was justified in withdrawing the said order and in doing so, no act of excess has been done to the petitioner.
7. Arguments heard. Record produced by the Department has been perused.
8. This is stark reality that the appointment was made on contract basis on 03.03.2007 by the competent authority for a period of three years, on the basis of which the petitioner submitted his joining report in Government Elementary School, Chak No, 302/HR, Fortabbas. Petitioner has been working in the Department for 84 days. In any case, on the basis of order of appointment, the decisive steps had been taken there-under and the Department lost the right to repent and the appointment order could not have been either cancelled or withdrawn. This question arose in Secretary to Government of N.W.F.P. Zakat/Social Welfare Department. kshawar and another v.
Sadullah Khan (1996 SCMR 413) wherein the august Supreme Court held in unambiguous terms that even if the appointment of the civil servant is found to be irregular for any reason, the Department had no jurisdiction to pass an order of termination of service or to withdraw the same and if the order has been found to be illegal or irregular for any reason in subsequent proceedings, the action can only be taken against the appointing authority who was responsible for the wrong done and the civil or Govt. servant who achieved some status in life and acquired scarce of livelihood, cannot be made to suffer. Muhammad Zahid Iqbal vs. EDO Mardan & others (2006 PLC
(CS) 1216) is also quoted with advantage in support of the above proposition of law.
9. In the Recruitment Policy vide No, SOR-IV (S&GAD) 10-1/2u(13 dated 17th September 2004, the position has been made further clear hv the Government of Punjab, Services & General Administration Department (Regulation Wing). In para 1,7(v) & Where appointment orders on regular or contract basis have already been issued and later it is determined that such appointments were made in violation of merit/selection criteria, et c , further action may be taken in accordance with law and terms and conditions of contract.
(vi) Departments should take disciplinary action against the persons responsible for committing irregularities in recruitment process".
Para 4(i) of the afore-noted Policy also provides in terms that recruitment on regular basis is always made under the provisions of the Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and on contract basis under the Policy Decision dated 17.9.2004. The contract according to the existing instructions, can be extended for further period but subject to the satisfaction of the competent authority and the assessment shall be made on the basis of performance and the work done during the tenure of contract period.
10. I have also noted that the competent authority namely Deputy District Education Officer (M), Fortabbas has not taken the action at his own level. Power of appointment is creature of Section 4 of the Punjab Civil Servants Act, 1974 read with provisions of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 or under the Contract Policy drawn by Government of the.
Punjab. Power of appointment being creature of the Statute can neither be guided nor controlled by an officer of supervisory jurisdiction. If any authority is required, Syed Fayyaz Hussain Qadri, Advocate vs. The Administrator, Lahore Municipal Corporation, Lahore and 4 others (PLD 1972 Lahore 316) can be quoted for reference. In the referred case law, Legal Advisor of the Municipal Corporation, Lahore was identified under orders of the Punjab Government which imparted instructions in the name of Administrator, Municipal Corporation that services of the Legal Advisor are no more required and the same may be dispensed with. The same was challenged and a learned Division Bench of this Court dealt with the proposition of law as under:-- "The Municipal Committee and after its supersession the Administrator alone was competent to order the removal of the petitioner under Section 29 of the Ordinance read with Article 45(4) of the Order. When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officers. It was held in B.S. Industries v. Deputy Registrar, Trade Marks (1) that even an Executive Officer when he performs a statutory function is not to be influenced by any direction from any quarter".
In any event, the position, therefore, which emerges is that in the case in hand, the decision has been taken by the competent authority on asking of the District Education Officer, who was not the competent authority in case of the petitioner. The competent authority passed the order in faithful compliance of the direction given by the District Education Officer, who had no jurisdiction whatsoever to interfere in the matter and impart necessary instructions in the functions of the competent authority, which alone was competent to pass the order.
11. I have also been intimated by learned counsel for the petitioner that for the period, petitioner served in the Department, the salary has been withheld and no part of it has been paid to the petitioner till date. The proposition of law is too settled to admit any debate that even the petitioner or the Government servant worked for some time on the basis of some irregular order, he is entitled to the salary for the period he performed his duty. Non-payment of salary can safely be termed to be an exploitation within the contemplation of Article 3 of the Constitution. Altaf Hussain Bhatti and 5 others Vs. Secretary to Government of Balochistan, Services & General Administration Department, Balochistan Civil Secretariat, Quetta and 2 others (1988 SCMR 1247) can successfully be quoted in support of the said proposition.
12. For what has been stated above, the impugned order dated 06.07.2007 passed by Respondent No, 2 is declared to be without jurisdiction, without lawful authority and of no legal affect. Petitioner shall be reinstated in service and the period he spent out of service, shall further be included in his contract initially entered between the parties. Respondent No, 3 is also directed to release the salary for the period the petitioner served in the Department and make payment to him in accordance with law.