HAFIZ TARIQ NASIM, J.--- This order shall also dispose of Writ Petitions No. 4091/2008 and 4953/2008 alongwith this petition, as common questions of facts and law involve.
2. Facts leading to these writ petitions are that the petitioners who were employed as Junior Clerks in BS-7, performing their duties since long and being legitimate expectants for the next promotion were deprived of the same whereas the private respondents who were Junior Clerks in BS-5 were given the benefit of higher grade under the garb of adjustment.
3. Learned counsel for the petitioners submit that the petitioners were discriminated, their right of legitimate, expectancy was jeopardized, the private respondents were accommodated through the impugned orders and only to achieve their designs, the official respondents in league with private respondents used the word adjustment whereas practically the private respondents are performing their duties against higher grades on regular basis which have caused a serious prejudice to the petitioners.
4. On the other hand, the learned counsel representing the private respondents submits that the private respondents were adjUsted against the higher post after assessing their eligibility and determining their suitability, hence the petitioners have no lawful right to agitate against the same.
5. The learned Assistant Advocate General as well as the learned Legal Advisor PHA argued the case at length and submitted that the adjustment . Of private respondents against higher, post in just a stopgap arrangement and it cannot be termed a permanent feature or promotion on regular basis. Further submit that the petitioners are also entitled for promotion, however, they shall be granted this benefit in near future and for that the PHA authorities are doing their level best for the redressal of their grievance.
6. The department representative i.e. Zareef Iqbal Satti, Director. Coordination, who is present in Court, submits that while adjusting the private respondents against the higher posts, only the pending. Work vis-a-vis the performance of private respondents was taken into consideration and they were adjusted as a stopgap arrangement and not on regular basis. Further submitsthat the directions of this Court were complied with in letter and spirit by holding a detailed inquiry into the contents of the writ petition and allegations leveled by the petitioners. He undertakes to place the petitioners as well as private respondents' case for promotion before the appropriate committee of PHA and to accommodate the petitioners within a period of one month.
7. Arguments heard. Record perused.
8. Record reveals that the private respondents were accommodated in an arbitrary manner which smells something else than the observance of law, rules and transparency and this very fact is also endorsed if the inquiry report submitted by the PHA is perused, meaning thereby that the petitioners who were more eligible than the private respondents were wrongly ignored at the time of adjustment of the private respondents against higher grades.
9. In compliance to the Court's directions, the enquiry was conduced by Abdul Qayyum, Additional Secretary, Planning and Development Department, Government of the Punjab, before whom the petitioners as well as the officers against whom serious allegations were levelled appeared, every opportunity was granted to all of them and ultimately the enquiry report dated 22.6.2008 is submitted before this Court.
11. It shall be advantageous to reproduce certain parts of the Enquiry Report, which are as follows:-
(i) "Zareef Iqbal Satti, former Director Administration, PHA. Categorically stated before the Enquiry Officer in the following words:
(ii) The promotions made in the name of "Adjustment" were not in accordance with rules/law. The finance wing had raised objections to the said adjustment."
(i.e) Javid Iqbal the then Assistant Director Audit stated in the following words: "No heed was taken to the objections he raised on such adjustments and that in the absence of a clear vacancy pay should not be released. As a result of objections to the said adjustments some people entered his office.Abused/insulted him."
(iv) Ikram Naveed, the then Director (Finance) stated before the Enquiry Officer as under:- "Before making adjustments vacancy position was never ascertained from the Finance. There was a sanctioned strength in the beginning which was ignored and it was never updated. Accounts Branch and Internal Audit raised objections to, these violations to Administration Wing but the same were overruled and directions were issued for making payment."
(v) The Enquiry Officer in para. 27 of his report observed as follows:- 'As is evident from the orders made during the period from April, 2007 to May, 2008, in almost all the cases, the expression of "adjustment" has been used, which is not accepted as mode of making appointments, promotions and up-gradation in any organization or Government Department."
(vi) In para. 31 of his report he observed as under:- "The pattern of adjustment would indicate that Malis were adjusted as Supervisor, Driver, Junior Clerks were promoted as Supervisors, Security Officer and Garden Superintendents. These are few examples where care/channel of promotion was violated."
(vii) In para. 32 of his report the Enquiry Officer referred certain cases and held that they were granted higher scale and within a very short span of time they were allowed another adjustment in yet more higher scale, which renders the entire process a farcical exercise to favour them."
(viii) Finally the Enquiry Officer observed:- "there is nothing on record to show that the DPC was constituted by the Chairman PHA, so much so under Paras. 39 and 40,of his report ' he referred the mal-administration in so many words."
(ix) Findings in para. 45 of the Enquiry Report, recommendation in para. 47 of the Enquiry Officer dated 22.6.2008 are very important.
10. The Enquiry Officer in a specific manner found Zareef Iqbal Satti, Director involved in the said irregularities in addition to holding Riaz Ahmad Qureshi, Assistant Director (Admn.) guilty of initiation of misleading notes. In this respect para. 46(e) of the enquiry report is important to go through.
11. After going through the entire enquiry report and after hearing the parties at length, it is held that Zafar Iqbal Satti and his associates are responsible of the entire illegal arrangement. In the Enquiry conducted by Additional .Secretary, Government of Punjab, (it was concluded in a transparent manner) Zafar Iqbal Satti. And his associates were afforded all opportunities to defined their cases in all its fairness and it clearly reflects that Grade 5 officials were .Benefited granting them Grade 16 by merely using the word "adjustment." This act of the concerned officers, according to my understanding of law and of the principles of natural justice, fairness, equity and provision of equal opportunities is flawed in the eyes of law. A public functionary cannot accommodate some of its officials for any reasons by merely using a word such as accommodate and thereby overriding the legitimate rights of other employees, who work hard to work their way up the hierarchy of Grade/Posts. Needless to mention that every Government Department/all other functionaries are duty bound to ensure that the true process of law is adopted and that too in a clear and transparent manner without any inference of decisions made upon whims and moods. The stance of Zafeer Iqbal Satti and his associates that this is a stop gap arrangement, in this regard I express My great concern over the whimsical and capricious manner in which a stop gap arrangement has been made. No doubt that a stop gap arrangement though not barred by law but it should always be adopted by keeping in mind certain boundaries and principles of fairness equity and natural justice. The first and foremost duty of the Authority attempting to "stop the gap" should be to see whether the person to be appointed to stop such a gap can actually and reasonably carry out duties of a nature of the post to which he is to be appointed to stop the gap, but in the present case it is extremely difficult to grasp how to 5 scale official can fill a gap of an officer of. Grade 16.
This act of the authorities clearly shows its colourable exercise of power and lack of transparency in its procedures, which otherwise is meant for every public functionary.
12. Further more the authorities should also extend discretionary favours toward its favoured employees and let the less favoured employees suffer from its decision. Every employee including other individuals lawfully expects the same treatment within the same group of persons and not to be discriminated is also a fundamental right under the Constitution of Islamic Republic of Pakistan, which must be extended by the Courts as a duty towards a general public including employees of statutory, non-statutory organizations and the civil servants. Therefore, those employees, who were not appointed as Grade 16 officers even though being senior to the private respondents of Grade 5 officers were discriminated without any fault of their field.
13. All the above discussions necessarily indicates that PHA has not acted in accordance with law, rather acted in contravention to settled principle of law, equity, fairness and equal opportunity.
Keeping in view all the attending circumstances I see myself within the bounds of taw to interfere with the decision of the PHA in the impugned matter and declare all these "adjustments", which otherwise were practically appointments through promotion as illegal and without force.
14. Respondent No. 1 is directed to constitute Departmental Promotion Committee, place the petitioners as well as private respondents' cases before it, who shall examine each and every case on its on merits, recommend the appropriate case for promotion and then the competent authority after applying its independent mind notify the promotion of the recommendees of the Departmental Promotion Committee within two months from today.
15. So far the adjustment against higher posts of private respondents is concerned, it is already declared in the preceding paras that those adjustments were an outcome of arbitrariness, violation of all norms of justice and equity and are set aside, however, with a view to avoid smooth functioning of the Authority, the private respondents shall continue to hold their present posts till 07.09.2008 i.e. The target date of finalization of the fresh exercise. It is to be clarified that if the process is not completed till 07.09.2008 by PHA, posts held by private respondents shall be treated as vacant which shall be filled strictly in accordance with applicable Rules.
16. Before parting with this judgment, I feel it appropriate to direct the Chief Secretary, Government of the Punjab to take appropriate action but strictly in accordance with law against the responsible of this illegal and unlawful action like Director Zafeer Iqbal Satti and his associates and simultaneously extend appreciation to Ikram Naveed the then Director Finance, PHA, Mr. Mubashir Khalid Mirza, Assistant Director (Audit), who showed resistance despite extraneous pressure.
17. While initiating action against Zareef Iqbal Satti and his associates, the enquiry report, which otherwise is an outcome of transparency and wherein Zareel Iqbal Satti and his associates conceded before the Enquiry Officer 'in so may words be particularly taken into consideration.
Paras 6 to 8 of the writ are also of great importance, these are also be adhered to. Office is directed to send a copy of this judgment to the Chief Secretary directly and the learned Assistant Advocate General who is present in the Court shall ensure the compliance of the judgment. Result of the action against Zareef Iqbal Satti and his associates be conveyed to the Deputy Registrar (J) of this Court within two months.
All the writ petitions are disposed of in the above terms . .