This ICA is directed against the order dated 27-5-2009 passed by the honourable Chief Justice of this Court accepting Writ Petition No,5500 of 2009 and the appointment of the appellant was cancelled as declaring the same to be illegal, tainted with mala fide and politically motivated.
2. Brief facts of the case are that the appellant was appointed as Assistant Engineer Mechanical BS-17 on Regular Basis in Sheikh Zayed Hospital, Lahore in September, 2005. He remained in service of the said Hospital till March, 2007. The appellant also possessed requisite qualification required for the post of Chief Inspector Boiler BS-18 in the Directorate of Industries Punjab Lahore vide order dated 3-11-2007 issued by Secretary Industries, Government of the Punjab and before joining the service he resigned from the service in Sheikh Zayed Hospital, Lahore. The appointment was challenged in Writ Petition No,3435 of 2007 filed by respondent No,4. The appellant also filed Writ Petition No,4225 of 2007. Both the writ petitions were consolidated and disposed of with the direction to respondent No,2 to decide the matter in accordance with rules and regulations of the department. The Departmental Promotion Committee's meeting was held on 20-10-2007 but nobody from the entire department was found eligible for promotion to the post of Chief Inspector Boilers and decided to forward a requisition to Punjab Public Service Commission to fill the post of Chief Inspector Boiler, resultantly advertisement was made in Daily Jang on 4-11-2007. The appellant and other candidates applied for the said post and the Commission issued call letters for interview for 24-3-2008 but later on the Commission cancelled the interview on 19-3-2008.
Subsequently the appellant was appointed vide directive dated 2-11-2007 which remains intact.
3. It is argued that the impugned order passed by the learned Single Judge in chambers is absolutely against the facts and law. The appellant was appointed on contract basis and there was a condition in the appointment order that before joining the said post the appellant should resign from his previous service which he did. Again it was mentioned in the letter that the appellant is appointed on contract basis against the vacant post till arrival of the regular incumbent.
4. It is argued that nobody has been appointed or selected for the post by the Commission and by virtue of the judgment of the learned Single Judge, the said post became vacant which cannot be kept vacant for unnecessarily long period. Further submits that S&GAD asked the Industries Department Government of the Punjab regarding the status of contractual appointments and their substitution. The Industries Department informed that the appellant is carrying out essential service and his suitable replacement is not available in the Directorate, therefore, this Directorate has no objection to his continuation in the post in Industries Department till the appointment of Chief Inspector of Boilers filled in the regular manner as prescribed in rules. This aspect has not been considered by the learned Single Judge. Further submits that the appellant cannot be deprived of the benefit once it has been granted to him, though in violation of the rules. Finally argued that the appellant shall not be removed from his present post till the arrival of incumbent as it is mentioned in the appointment letter and the learned single Judge passed the order in violation of the rules framed vide which employees on contract basis are regulated and no notice for termination of service in lieu of one month salary had been issued.
5. Conversely, respondent No,4 argues that the basic appointment of the appellant was in violation of the rules for appointment for the post of Grade 16 and above. The said post as per the rule is to be advertised, then on receiving the applications of the incumbents they will be interviewed by the Public Service Commission and thereafter the one candidate is to be appointed in place of the appellant. Since no exercise for the selection of Chief Inspector Boiler has been taken up by the Public Service Commission. Further submits that the appellant's basic appointment was challenged in Writ Petition No,3455 of 2007 and writ petition was disposed of with the direction to respondent-Department to fill the post in accordance with the Rules and Departmental Policy. It was also directed that the post may be advertised and the Public Service Commission shall select one suitable candidate for the said post to be appointed on the regular basis. further argued that in compliance of the order passed in the writ petition since nobody amongst those already working in the respondent-Department possessed requisite qualification and was not selected. The said post was advertised in the Daily Jang for interview but later on Commission suddenly cancelled the interview of those applicants who were called for interview and they had to go back without appearing. The appellant was appointed as Chief Inspector Boiler on 2-11-2007 in clear violation of the rules. Further argues that the appellant was appointed on contract basis and his service can be terminated on one month notice by the respondents. He has no right to claim that he cannot be removed and retains the post in violation of law and rules. The direction issued by the Chief Minister was in violation of rules. Since the basic appointment was in violation of the rules and is illegal, thus appellant cannot claim that he should have been served with notice or he should not be removed till the arrival of new incumbent.
6. We have heard the learned counsel for the appellant and respondent No,4.
7. The learned counsel for the appellant has failed to point out any illegality or irregularity in the impugned order. He has also failed to show us that the appointment of the appellant was made in accordance with the rules and the direction issued by this Court in Writ Petition No,3455 of 2007.
The main stress of the learned counsel for the appellant was that in this case the method adopted/created by the Full Bench in the case of prosecutors shall be followed and that the Public Service Commission after advertising the post shall select the incumbent and on the arrival of new incumbent the already appointed appellant shall go. We do not agree with the arguments of the learned counsel. The order passed in that writ petition was an interim arrangement to be followed during the pendency of the writ petition, as the case is still pending before the Full Bench. The appointment of the prosecutor was not illegal or against the rules nor the same has been declared so by the Full Bench. Here in this case the appointment of the appellant was in violation of the rules.
It appears that the date fixed for the interview by the Commission was cancelled without assigning any reason and as a result of that the appointment of the appellant remains intact. His service for two years as Chief Inspector Boiler on the basis of letter, dated 2-11-2007 does not give legitimacy to his appointment. The arguments that the Chief Executive of the Province is fully competent to appoint any body on the contract basis till the arrival of the new incumbent has no force as in this case a direction was given by this Court to appoint Chief Inspector Boiler in accordance with rules.
The cancellation of interview by the Commission was without assigning any reason.
8. The next argument that no notice for termination as required under the law was served upon the appellant has no force. The appellant at the most can claim one-month salary in lieu of the notice.
As observed earlier the very appointment of the appellant was illegal and without lawful authority.
The learned counsel could not satisfy us on this question whether the order passed by the learned Single Judge suffers from any illegality or irregularity.
For what has been discussed above, this appeal having no merit is dismissed.