Through this writ petition, petitioner seeks direction to Respondent No. 1 not to restrain him from performing his duty as Sweeper/Sanitary Worker and if any order of his removal from service has been passed, may be declared illegal.
2. Brief facts giving rise to this petition are that Respondent No. 1 advertised certain vacant posts including the posts of Sweeper/Sanitary Worker in the "Daily Nawa-e-Waqt" on 21.12.2009 for filling the same. In response to the said advertisement, the petitioner applied for the post of Sweeper/Sanitary Worker, and received call vide Letter No. 1546877 dated 19.07.2010. The petitioner appeared before the Departmental Recruitment Committee on 29.07.2010 and after passing through all stages including interview, he was appointed as Sweeper/Sanitary Worker in BPS-1 vide appointment letter dated 29.07.2010. The petitioner joined the service and started performing his duty. On 09.08.2010 Respondent No. 1 called the petitioner and verbally ordered .him not to perform his duty as he is resident of District Khanewal, therefore, not eligible for appointment. As the verbal order of Respondent No. 1 is illegal and without lawful authority, therefore, the petitioner is assailing the same through this writ petition.
3. Respondent No. 1 has filed comments wherein he has opposed the writ petition. Learned counsel for the petitioner contends that appointment of the petitioner has been in accordance with law, therefore, verbal order of Respondent No. 1 not to perform duty at his office, is illegal and without lawful authority. It has been further contended that without prejudice to the above, the petitioner's appointment cannot be cancelled or withdrawn on the ground that he has been appointed inadvertently as even if the appointment is illegal, it is not the mistake of the petitioner rather that of Appointing Authority, therefore, petitioner cannot be penalized for the mistake of some other person. In support of his contention, learned counsel has relied upon case titled Province of Punjab etc. v. Zulfiqar Ali (2006 SCM R 678) and Administrator, District Council, Larkana and another v.
Ghulab Khan and 5 others (2001 SCM R 1320).
4. Learned AAG has controverted the contentions of learned counsel for the petitioner and has stated that the post in question belongs -to District Multan whereas the petitioner belongs to District Khanewal, therefore, he cannot be appointed against the said post which is reserved for District Multan. He has prayed that the writ petition may be dismissed as being not maintainable.
5. I have heard learned counsel for the petitioner as well as the learned AAG and perused the available record.
6. Admittedly, the petitioner has been appointed after fulfilling all the formalities and clearing interview conducted by the Departmental Recruitment Committee of the respondents. The contention of learned AAG that' the post in question is reserved for the residents of District Multan while the petitioner belongs to District Khanewal, therefore, he cannot be appointed against the said post, is not supported by the advertisement appeared in the "Daily Nawa-e-Waqt" on 21.12.2009 and relevant portion whereof is reproduced hereunder for facility of reference:-- {{URDU TEXT}} The aforementioned condition states that candidate should belong to the districts of the region concerned and the post in question pertains to Multan Region and District Khanewal falls within the Mult,an Region, and has not been excluded from that Region, the way Districts Gujrat and Mandi Bahauddin have been expressly excluded, therefore, the contention of learned AAG that the post in question is reserved only for District Multan, is without substance hence, repelled.
7. During the arguments, learned AAG has placed on record letter dated 08.09.2010 showing the withdrawal of appointment order of the petitioner. It may be relevant to mention that the instant petition was admitted by this Court for regular hearing on 18.82010 and the said withdrawal letter is containing the date as 8.9.2010 which clearly shows that the same has been issued during the pendency of this writ petition certainly as a reaction thereto. It has been noticed that Respondent No. 1 has not mentioned the said letter dated 08.09.2010 that has been issued by him, in his parawise comments which have been filed -vide letter dated 28.09.2010 meaning thereby that tnC same was not in existence on that day and has been prepared by Respondent No. 1 subsequently to lend credence to his verbal order dated 09.08.2010.
8. The contention of learned counsel for the petitioner that the petitioner's appointment cannot be cancelled or withdrawn on the ground that he has been appointed inadvertently is without force as even if the petitioner's appointment is illegal, thus, this mistake has not been committed by the petitioner, therefore, he cannot be penalized for the mistake committed by some other person. As pointed out above, petitioner has applied for the said post and fulfilled all the conditions/ formalities required by the Appointing Authority/Departmental Recruitment Committee which has selected him after interviewing him and scanning his all documents. Therefore, for the sake of arguments, if he has, been wrongly appointed, then it is the mistake of the Appointing Authority and not of the petitioner, hence, he cannot be penalized for the same. This view is supported by the Honourable Supreme Court in case titled Province of Punjab etc. v. Zulfiqar Ali (2006 SCM R 678), relevant portion of which is reproduced hereunder:-- In other words in such-like situation instead of taking action against an appointee it is appropriate if an action is taken against the Appointing Authority who apparently committed a misconduct by making such appointment, as it has been observed by this Court in the case of Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCM R 1034. Relevant para therefrom is reproduced hereinbelow for convenience:-- `(15) We have noted in number of cases that Departmental Authorities do show haste at the time of making such appointments when directives are issued to them by the persons who are in the helm of affairs without daring to point out to them that the directions are not implementable being contrary to law as well prevalent Rules and Regulations. In fact such obedience is demonstrated by the concerned officers of the Departments to please the Authorities governing the Country just to earn their time being pleasures but on the change of regime they do show speed in undoing illegal actions which they themselves have accomplished in the previous regime and due to their such illegal acts the employees who were appointed suffer badly without any fault on their part and then even nobody bothers for their future career. Therefore, we are of the opinion that in such situation besides proceedings against the beneficiaries of so-called illegal appointments the officers who were responsible for implementing illegal directives should also be held equally responsible and severe action should be taken against them so in future it may serve as a deterrent for other like-minded persons. This Court in an identical case declined to grant leave to appeal in the ease of Secretary to Government of N.-W.F.P. (1996 SCM R 413) and observed that it is disturbing to note that in this case Petitioner No. 2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his service due to irregularity and violation of Rule 10(2) (ibid). The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointments'."
9. In the light of the above case law, the actions of Respondent No. 1, stopping the petitioner from performing his duty and thereafter withdrawing his appointment, are illegal and unlawful.
10.In view of what has been discussed above, the instant writ petition is allowed and letter dated 8.9.2010 is declared illegal and unlawful and respondents are directed to allow the petitioner to perform his duty and to pay him his salaries from the date of his appointment.