TARIQ JAVAID, J. - It is contended by the learned counsel for the petitioner that the petitioner was adjusted at Government College for Elementary Teachers (M), Dera Ghazi Khan against vacant post of E.S.T. (Vernacular; vide order dated 25.11.2009. The said posting was in Elementary School which remained attached to the said College after its upgradation with separate budgetary provisions, In pursuance of the above-said order the petitioner joined on 5.12.2009. However, on 16.12.2009 Principal, Government College for Elementary Teachers (M), D.G. Khan declared the petitioner as surplus. The learned counsel for the petitioner has impugned the order dated 16.12.2009 on the grounds that respondent No. 4 had no jurisdiction to pass an order in. The circumstances when respondent No. 1 has issued lawful order and has provided the budgetary provisions-and there is vacant post existing in the school.
2. On the other hand, learned counsel for respondent No. 4 has vehemently argued that there is no vacant post available in the College. The petitioner is not qualified to teach in the College and that no budgetary provision has been made for payment of salary to the petitioner from the budget.
3. The contentions raised by the learned counsel for respondent No. 4 are not supported by respondent No. 1, who has clarified that although School has been upgraded as a College, still the Elementary School is attached to it wherein the petitioner was posted and budgetary provisions were provided for school by respondent No. 1, hence with mala fide intention respondent No. 4 has refused to accept him.
4. Heard. Record perused.
5. It appears that contention of respondent No. 1 is not without force. The petitioner was posted as teacher in th6 Elementary School attached with the College against vacant post. Budgetary provision for School is separate from budgetary provision of College. Learned counsel for the respondent has time and again referred to the budgetary provisions of College and when asked about budgetary provision of school which is letter No. DSD/AD/GCET/Budget/OS/2713, dated September 5, 2009, the learned counsel for respondent No. 4 had no answer. Learned counsel for the petitioner has pointed of that only respondent No. 4 himself requested for posting of the petitioner. However, he had changed his mind and instead of the petitioner has intended to adjust some other teacher.
6. It was vehemently argued by the learned counsel for respondent No. 4 that this petition is not maintainable as petitioner is civil servant and there is Constitutional bar under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. However, the jurisdiction of this Court is conceded by the respondent No. 1, as according to him respondent No. 4 is illegally refusing to implement order passed by him.
7. Since the action taken by respondent No. 4 is mala fide in law and there is no grievance of the petitioner against the Government. The objection is frivolous. The only grievance is against mala fide of respondent No. 4 for which this petition is competent had the grievance of the petitioner been with regard to the service matter, bar as contained under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 would have been operative but in the present case respondent No. 1 who is controlling authority has no objection in accepting the petition, whereas respondent No. 4 misusing his capacity with mala fide in law has issued the impugned order. Respondent No. 4 is under obligation to implement the orders passed by the respondent No.1 and has no lawful authority to issue the impugned order.
8. Apparently a sham defence that there is no budgetary provision and there is no vacancy at the College is being raised. Undoubtedly the vacancy .Existed, in the school and not in the College and budgetary provision had been granted in school and not in the College. There is refusal of respondent No. 4 to allow petitioner to join the school and issuance of impugned order appears to be mala fide in law, hence it is struck down and respondent No. 4 is directed to allow the petitioner to join the school as E.S.T. (Vernacular).
9. This petition is allowed with no order as to costs.