1. MUZAFFAR ALI J.--- The adjustment/appointment of respondent No,6 as Assistant Engineer under Office Order No,SWP1/100/Admn/2/2008/295 dated 18-3-2009 and office order No,SWP/1/1/Admn 2008/482 issued by respondent No,3 with the approval of respondents Nos.2, 3, 4 and 5, has been challenged A through the instant writ petition by the petitioners with the facts as under that:-- ' The petitioners have been appointed in the year 1984 as Sub Engineers in the respondent department and since their appointment, they are working in the same post without any departmental promotions. The respondent No,6 was appointed as Assistant Engineer in the year 2005 on the basis of work charge fixed pay of Rs,3,500/- per month. In the year 2009 a permanent post of Assistant Engineer (BPS-16) was created in the 18 MW Hydro Project Nalter under the respondent department.
2. ' The Supra created post of Assistant Engineer was to be filled by departmental promotion as per rules, but the respondents in violation of the rules adjusted the respondent No,6 from back door vide office order No,SWP-1/1/Admn 2008/482 dated 18-3-2009, the petitioners met the situation through departmental appeal before the respondent No,2 and the adjustment order was withdrawn vide Office Order No,SWP-1/1/Admn 2008/444 dated 11-4-2009 in response, but the respondents recalled the above withdrawal order in utter violation of law, rules and procedure and again adjusted the respondent No,6 against the impugned post, hence the writ petition.
3. ' The respondents submitted their written comments before the Court whereby they denied any violation of rules and law and asserted that, initially the respondent No,6 -was appointed on work chargt basis for fixed pay of Rs,3500/- per month but later on he was appointed as Assistant Engineer in BPS-16 vide office order No,E-1/1 00/ Admn.17/2005 dated 23-6-2005. The respondents also denied the case to be of promotion but they claimed the case to be one of "re-designation" and "adjustment".
4. ' Heard the learned Assistant Advocate-General for the respondents Nos.1 to 5 assisted by Mr. Yawar Hussain Advocate. The learned counsel for the petitioners. Mr. Muneer Ahmed Advocate argued the case for the respondent No,6. The learned A.A.-G. And the counsel for the respondent No,6 mainly asserted on 2 points first "laches" and "Estoppel" as preliminaries and secondly on the terms "re-designated" and the "adjustment". We perused the relevant rules which speak otherwise as "if the posts of Assistant Engineer are vacant or created in the department the same shall be filled 100% by departmental promotion". Therefore we intend to discuss the supra points to understand if the points are cogent enough to justify the appointment of the respondent No, 6 against the impugned post.
5. Point No,1 principle of Laches and Estoppel: ' The learned Assistant Advocate-General and counsel for the respondent No,6' urged that, since the petitioners had not raised any objection against the office order dated 23-6-2005, whereby the respondent No,6 was appointed as Assistant Engineer as such the petition suffers from "laches" and "Estoppel". We are not in consonance with the learned counsel for the respondent No,6 on the point for the reasons that: (a) the respondent No,6 was not appointed on permanent basis vide order dated 23-6-2005 against any created post of AE. The appointment of the respondent No,6 was purely on temporary and work charge basis as such the petitioners had no cause to raise any objection against his appointment as neither he engaged any created post of Assistant Engineer nor he could be a threat to their seniority against any created post under rules. The petitioners raised objection when the respondent No,6 was made rival to their rights by the department, adjusting him against the created post ignoring the rights of the petitioners. (b) since the petitioners filed departmental appeal just after permanently adjustment of the respondent No,6 against the created post as such the writ petition is maintainable and no principle of "laches" or "Estoppel" hits the same.
6. Re-designation and adjustment: ' The learned A.A.-G. And learned counsel for the respondent No,6 stressed on the next point that,
(a) the already existing post of the Account Officer (BPS-16) has been re-designated as Assistant Engineer (BPS-16) and to give value to the point they referred the letter No,4(2)- DFA(K&S) 2008
(PT) 991 Islamabad vide which some listed posts were converted from development to non- development side and also presented Letter No, SWP-1/100/2/2007/277 dated 18-3-2009, which transpires that the SE (works) asked the Secretary Finance to change the nomenclature of the post of the Account Officer (AL) BPS-16 and also proposed that "the respondent No, 6 may be adjusted against the post so created". We are again disagreed with the second point too for the reasons that: (a) the case is not a simple case of change of nomenclature as the learned counsel tried to fabricate it. The functions of an Account Officer are altogether different from those of an Assistant Engineer. Hence it is a change in cadre (b) the respondent No, 6 was not appointed against the post of Account Officer but his appointment was as AE on work charge post as such he could not claim any right to be appointed against the permanent basis of AE created by change of the cadre. The term adjustment is also alien to the rules.
7. Last but not the least our visit into the record of the case and perusal of the relevant rules shaked us to know that how the responsible authorities of the respondent department have tried to twist the rules, procedure and law in the case in hand to give undue benefit to the respondent No,6. The case is a simple case of promotion of one out of the number of Sub Engineers awaiting for promotion to the post of AE for years hugging the seniority list and fitness record. The respondents, instead of promoting most senior SE taking care of his fitness to be promoted, used the same terms as "adjustment" "change of nomenclature" and "re-designation" for awarding the respondent No,6 with the post at the cost of the petitioner's rights in utter violation of relevant rules, procedure and law. When the petitioner's knocked the doors of the respondents for getting redressal of their grievance, they halted for a while and realized the fault and withdrew the illegal order of the respondent No,6 but their realization was for a short span. They again recalled the withdrawal order without hearing the petitioners and for no cogent reason.
8. ' The upshot of the above discussion is that the impugned appointment orders No,SWP- 1/100/Admn/2/2008 and SWP1/1/Admn/2008/482 are declared void and without lawful authority and the impugned post is declared vacant and the respondents Nos.1 to 5 are directed to fill the same by promotion under the relevant rules keeping in view the seniority and fitness among the awaiting Sub Engineers of the department. Since the temporary appointment of the respondent No,6 is not in question in the instant petition as such the same stands in field unless the department otherwise deems fit. No order as to cost.