' Muhammad Bashir, petitioner, has filed the present revision petition challenging the judgment and decree dated 6th February, 1974 passed by the learned District Judge, Muzaffargarh, whereby judgment and decree dated 21st November, 1972 of Civil Judge 1st Class, Muzaffargarh, passed in favour of the petitioner were set aside and the petitioner's suit was dismissed.
2. The petitioner instituted a suit for declaration on 8th July, 1971 against the Province of Punjab through Collector, respondent No. 1, that order 13th January, 1970 made by the Deputy Commissioner. Muzaffargarh, whereby respondents Nos. 2 to 3 and Mazharul Hassan, Lutaf All Shah and Sadiq Muhammad were selected as temporary junior clerks after ignoring the petitioner, whose name had been entered on 15th November, 1962 in the list of approved candidates the appointment as junior clerks maintained in the office of Deputy Commissioner was illegal and ineffective as against the petitioner. The petitioner also challenged order dated 20th June, 1970 passed by the Commissioner, Multan Division and order dated 23rd November, 1970 passed by the:Board of Revenue whereby his representation and appeal against the aforementioned order of Deputy Commissioner were rejected. According to the averments made by the petitioner in his plaint his name as candidate for appointment to the post of junior clerk was entered in the list by the Deputy Commissioner on 15th November, 1962. He was appointed in the leave vacancy on 13th November, 1964 to the post of junior clerk which he held for two months. Subsequently also he was appointed from time to time to the post of junior clerk. The last appointment was for a period of for months from 18th December, 1968 to 17th April, 1969. According to him he had been preforming his functions satisfactorily during the various periods he was appointed as junior clerk. On 18th December, 1969 a notice was published in the Daily Imroz inviting applications through Employment Exchange for appointment of three junior clerks in the Deputy Commissioner's office at Muzaffargarh. After interviewing the candidates on 6th January, 1970 order of appointment of respondents 2 to 8 and Mazharul Hassan, Lutaf Ali Shah and Sadiq Muhammad were issued on 13th January, 1970. The names of the aforementioned persons had not been entered in the list of the approved candidates. Feeling aggrieved by the aforementioned order of appointment the petitioner made a representation to the Commissioner, Multan Division, which was turned down on 20th June, 1970. Thereafter he approached the Board of Revenue who too rejected his appeal on 23rd November, 1970. According to the petitioner he was entitled to be appointed as junior clerk against one of the posts as his name was borne on the list of approved candidates as maintained in the office of the Deputy Commissioner in accordance with the instructions contained in the District Office Manual.
3. Petitioner's suit was mainly contested by respondent No. 1 and it was contended that after October, 1964 practice of appointment to the posts of junior clerks from amongst the approved candidates whose names were borne on the list was discontinued and as such the petitioner was not entitled to be appointed as junior clerk particularly when he had not participated in the test and had failed to appear for interview. It was also pleaded on behalf of respondent No. 1 that the petitioner's suit was not maintainable as he had no cause of action. From the pleadings of the parties the learned trial Court framed the following issues :
(1) Whether the plaintiff's suit is maintainable in Law ? 0. P. P.
(2) Whether suit is bad for misjoinder of parties ? 0. P. D.
(3) Whether suit is bad for misjoinder of causes of action ? 0. P. D.
(4) Whether suit is not maintainable in the present form ? 0. P. D.
(5) Whether the plaintiff is entitled to be posted as junior clerk on the basis of his candidature in the list maintained by the defendant? 0. P. P.
(6) Whether no list is being maintained for candidate-clerks in the defendants office since 1964? 0.
P. D,
(7) What is the effect of non-appearance of the plaintiff in the test interview for the selection of junior clerks ? 0. P. D.
(8) Relief.
Issue No, I. Was decided io favour of the petitioner while Issues Nos. 2 to 4 were decided against respondent No. 1. Issues Nos. 5 to 7 were considered by the learned trial C9441 topther and were clecidc4 it petitioner's favour. As a result of the above findings the petitioner's suit was decreed with costs. Respondent No. 1 challenged the judgment and decree of the learned trial Court in appeal which was allowed by the learned District Judge vide his judgment dated 6th February, 1974.
Findings of the learned trial Court under Issues Nos. 5 and 7 were reversed and the petitioner's suit was dismissed leaving the parties to bear their own costs.
4. Learned counsel for the petitioner has contended that the view taken by the learned District Judge in appeal that after the coming into force of the West Pakistan Revenue Department District Ministerial Service Rules, 1964 the petitioner was not entitled to be appointed as junior clerk because under rule 8 all vacancies in the cadre posts of junior clerks were to be filled by initial recruitment and that rule 3.5 of District Office Manual under which list of candidates for appointment to the posts of junior clerk was maintained had ceased to be operative and as such the Deputy Commissioner had not acted illegally by selecting candidates whose names were not borne on the list, is not legally tenable. Although West Pakistan Revenue Department District Ministerial Service Rules, 1964 were enforced with effect from 17th October, 1964 appointments to the posts of junior clerks even after coming into force of the aforementioned rules were made from amongst the candidates whose names were entered in the list. It, therefore, could not be said that the list maintained in the office of the Deputy Commissioner had lost its value after the coming into force of the West Pakistan Revenue Department District Ministerial Service Rules, 1964.
5. Learned counsel for respondent No. 1 has submitted that rule 3.5 of the District Office Manual in fact embodied District Subordinate Service Rules, 1942 which stood repealed by the West Pakistan Revenue Department District Ministerial Service Rules, 1964. The petitioner had no legal right of being appointed junior clerk on 13th January, 1970 when respondents No, 2 to 8 and three other persons were appointed junior clerks by the Deputy Commissioner, Muzaffargarh. After the publication of notice in the newspaper the petitioner should have appeared in the test and interview along with the other candidates as the publication of notice was a sufficient indication that appointments to the posts of junior clerks were to be made on the basis of test and interview and the earlier practice of appointment of candidates whose names were borne on the list maintained in the office of the Deputy Commissioner had been discontinued. As the petitioner had failed to appear for interview and test, he could not complain if he was not considered for appointment by the Deputy Commissioner,
6. It is not disputed that even after the coming into force of the West Pakistan Revenue Department District Ministerial Service Rules, 1964 list of candidates maintained in the office of the Deputy Commissioner for appointments to the posts of junior clerks had not been discarded and candidates whose names were borne on the said list were appointed as junior clerks till the end of 1969 as stated by Rehmat Ilahi, P. W.
3. It has also been proved that the aforementioned list was maintained in accordance with the provisions of rule 3.5 of the District Office Manual till October, 1969 because the name of Saif Ullah, a candidate for the post of junior clerk, was entered in the said list at Serial No, 46 on 17th Qctot)er, 1969. Thus there is no force in the contention that with the enforcement of West Pakistan Revenue Department District Ministerial Service Rules 1964, instructions regarding preparation of al list of approved candidates for the posts of junior clerks had been discontinued and the list already in existence had been discarded, Learned District Judge has failed to appreciate the provisions of rule 8 of the West Pakistan Revenue Department District Ministrial Service Rules, 1964 properly because that rule only provides that vacancies in the cadre posts of junior clerks shall be filled by initial recruitment. How such initial recruitment is to be made is not provided in the said rule. In fact there is no provision in the West Pakistan Revenue Department District Ministerial Service Rules, 1964 which deals with the method of recruitment of junior clerks. It is only in the case of posts carrying an initial salary of Rs, 215 p. m that it is provided in rule 9 that appointments by initial recruitment to such posts shall be made on the recommendation of the Selection Board. The post of a junior clerk does not fall within the above category of posts. Thus the method of recruitment of junior clerks which was followed under the District Subordinate Service Rules, 1942 as contained in rule 3.5 of District Office Manual was not affected by the West Pakistan Revenue Department District Ministerial Service Rules, 1964 and that is why the above method of recruitment was being followed till the end of 1969 for filling the vacancies in the cadre posts of junior clerks. It is not known why that method was given up after 1969 because the preparation of list of approved candidates and appointment to the posts of junior clerk from that list was not prohibited under 4 the West Pakistan Revenue Department District Ministerial Service Rules, 1964. In fact the provisions of District Subordinate Service Rules, 1942 dealing with the preparation of list of candidatefor the posts of junior clerks and appointment to such post from the above list were saved by rule 11 of the West Pakistan Revenu Department District Ministerial Service Rules. 1964 inasmuch as it I provided that in all matters not expressly provided for in these rule members of the service shall be governed by such rules as have been prescribed by Government and had been made applicable to them. Th.
Petitioner, therefore, had a legal right for being appointed as junior clerk in view of the provisions of rule 3.5 of the District Office Manual which had been saved under rule 11 of the West Pakistan Revenu Department District Ministerial Service Rules, 1964 as noticed above. The petitioner was not required to appear for test and interview as hi name was borne on the list of approved candidates and the publication of notice in the newspaper by the Deputy Commissioner for recruitment of junior clerks through interview and test could not deprive the petitioner of his legal right available to him, under rule 3.5 of District Office Manual, The petitioner had not appeared before the Deputy Commissioner for the test and interview which fact was not controverted by respondent No. 1 during the trial of the suit but it was strange that the Deputy Commissioner in his comments on the representation of the petitioner (copy Exh. P. 5), had made a misstatement that the petitioner had appeared for interview and test but he could not qualify in the test. It was one of the reasons for which the petitioner's appeal was dismissed by the Commissioner by his order dated 20th June, 1970, copy Exh. P.
4.
7. The upshot of the above discussion is that findings of the learned District Judge under Issues Nos.
5 and 7 are reversed and the findings of the learned trial Court are restored, As It result of these Wings declaratory decree is passed in petitioner's favour that he was entitled to be appointed as junior clerk in the office of Deputy Commissioner, Muzaffargarh, on 13th January, 1970 and that Deputy Commissioner, Muzaffargarh, had acted illegally in ignoring him at the time of appointment of junior clerks on 13th January, 1970. It is further declared that order dated 20th June 1970 passed by the Commissioner, Multan Division and order dated 23rd November, 1970 of the Board of Revenue upholding the aforementioned action of the Deputy Commissioner are illegal and ineffective. Petitioner's prayer that appointments of respondents Nos. 2 to 8 and Mazharul liaq, Lutaf Ali Shah and Sadiq Muhammad as junior clerks by Deputy Commissioner, Muzaffargarh, vide his order dated 13th January, 1970 was illegal is, however, disallowed.
' Having regard to the circumstances of the case parties are left to bear their own costs.