1. SHUJAAT ALI KHAN, J.--- The checkered history of the instant matter can be summarized in the words that the Board of Governors (hereinafter to be referred as "the Board") Government Central Model School, Lower Mall, Lahore (hereinafter to be referred as "the School") got published an advertisement in daily Jang, dated 04.02.2011, inviting applications from the prospective candidates for appointment against the post of Principal/Headmaster in the School. Upon completion of recruitment process, one Ghulam Abbas Sargana was appointed as Principal of the School vide order, dated 31.03.2011 passed by the Chairman of the Board. The appointment of Ghulam Abbas Sargana was challenged by one Sohail Manzoor, SST, who was also one of the contestants against the post of the Principal, before this Court by filing W.P. No.7741/2011 which was accepted by a learned Division Bench of this Court, through order, dated 06.07.2011 whereby appointment of Ghulam Abbas Sargana was declared illegal. After decision of the matter by this Court, the Board re-advertised the post in daily Jang, dated 14.08.2011. Out of total 26 applicants, 9 including the present petitioner were short listed and the petitioner being on top of the merit was recommended for appointment by the Recruitment Committee. The recommendations of the Recruitment Committee could not be matured into reality as instead of issuing Appointment Letter in favour of the petitioner, respondent No.1, vide order, dated 16.03.2012, gave additional Charge of the post of the Principal to Mian Abdul Haq (respondent No.3) who was working as Director Public Instruction (Secondary Education) Punjab at that time. As during pendency of this petition respondent No.3 was not only appointed on contract basis vide order dated 16.03.2012 but his contract period was also extended through order, dated 13.04.2015, the petitioner filed an application (C.M. No.654/2016) seeking amendment of the petition which was allowed vide order, dated 23.02.2016 and the petitioner filed amended Writ Petition whereby in addition to his earlier submission he has also put a challenge to order, dated 13.04.2015, whereby contract of respondent No.3 was extended.
2. The legal formulations put forward by learned counsel for the petitioner can be summarized in the words that the competent authority in the matter of appointment against the post of Principal was the Board and respondent No.1 did not figure anywhere thus the orders passed by him were coram-non-judice; that though respondent No.3 was initially given additional charge of the post of Principal till the selection of regular incumbent but respondent No.1 in clear violation of the rules and regulations appointed respondent No.3 on contract basis after his retirement from government service; that as respondent No.3 occupied the post of Principal without completion of process, no person could be appointed against the post of Principal on permanent basis; that a proper procedure has been laid down for appointment against the post of Principal but respondent No.1 without adhering to the said procedure accommodated respondent No.3, that at the time when respondent No.3 was appointed on contract basis maximum age limit for an applicant against the post was 50 years which was pivotal point at the time of decision of W.P. No.77411/2011; that Regulation No.21 of the Government Central Model School, Lower Mall, Lahore Regulations, 2014 (the Regulations, 2014) caters for appointment by way of transfer but respondent No.3 being a retired person cannot be appointed by way of transfer. In support of his contentions, learned counsel has relied upon the cases reported as Ch. Muhammad Akram v. Registrar, Islamabad High Court and others (PLD 2016 SC 961), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Human Rights Case Nos.57701-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P and 58118-K of 2010 and SMC No.24 of 2010 (PLD 2011 SC 205), Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287), M. Ashraf Azeem v. Federal Government of Pakistan and others (2013 PLC (C.S.) 1147) and Dr. Hafiz Muhammad Bashir and others v. International Islamic University, Islamabad and others (2013 PLC (C.S.) 191).
2. 3.Learned Additional Advocate General, while opposing the submissions made by learned counsel for the petitioner, states that as respondent No.3 was posted by way of transfer there was no need for advertisement; that on account of exceptional output of respondent No.3 not only he was commended for his meritorious services but was also awarded BS-21; that according to amendment introduced in West Pakistan Government Educational and Training Institutions Ordinance, 1960 matter regarding appointment of Principal fairly and squarely falls within the domain of the Board; that output of the Board is to be adjudged by the revisional authority, therefore, no exception can be taken against appointment of respondent No.3.
3. 4.Learned counsel representing respondent No.2, while defending the appointment of respondent No.3, states that as the Board not only comprised of competent persons but is also headed by a retired Judge of this Court it cannot be believed that while making appointment against such an important post they acted in an arbitrary manner; that as conduct of the petitioner was not above board as he was party to the proceedings pending before different forums he could not be appointed against the post of Principal; that initially Ghulam Abbas Sargana was appointed as Principal but as he failed to run the affairs of the said post on account of lack of experience he was replaced with respondent No.3; that the upper age limit of 50 years provided in Government Central Model School, Lower Mall, Lahore (General Conditions of Service) Regulations, 1990 was extendable.
4. 5.Learned counsel representing respondent No.3 submits that as initially respondent No.3 was given additional charge of the post of Principal, there was no necessity of advertisement especially when the Board was not functional; that initially the petitioner did not challenge order passed in favour of respondent No.3 rather prayed for his appointment against the post of Principal and after appointment of respondent No.3 on contract basis he opted to amend this petition; that by way of amendment he only added certain paras in the original Writ Petition without scoring off the irrelevant, therefore, if it is considered a petition of quo warranto the same is not maintainable as personal interest of the petitioner is involved; that stipulation regarding upper age limit was not absolute rather the same could be relaxed by the Board in appropriate cases; that as the contract of respondent No.3 was extended while following the Regulations, 2014, which having not been challenged still holds the field and any order passed there-under by the authority competent in that regard (the Board) cannot be annulled in these proceedings; that it is not necessary to issue publication for appointment in every case rather in appropriate cases the competent authority can dispense with the said condition; that as posts of Chief Election Commissioner, Advocate General, Attorney Generals can be filled in without advertisement the Board has committed no illegality while appointing respondent No.3 against the post of the Principal without advertisement. In support of his contentions learned counsel has relied upon the cases reported as Ghulam Rasool v.
5. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6) and Muhammad Shahid Akram v. Government of the Punjab through Chief Secretary and 3 others (2016 PLC (C.S.) 1335).
6. 6.Learned counsel for the petitioner, while exercising his right of rebuttal, submits that the judgments relied upon by learned counsel for respondent No.3 are irrelevant inasmuch as in the recent judgment rendered in the case of Ch. Muhammad Akram (Supra) the apex Court of the country has declared appointments against certain posts in Islamabad High Court, Islamabad, as illegal on the ground that the same were made without following requisite criteria especially the advertisement.
7. 7.I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.
8. 8.Firstly taking up the objection raised by learned counsel for respondent No.3 that as the petitioner did not challenge appointment of respondent No.3 in the original Writ Petition rather he prayed for his appointment, instant petition cannot be considered in the nature of quo warranto, I am of the view that to appreciate the said contention prayer clause of the original Writ Petition is of paramount consideration which for facility of reference is reproduced herein below:- "In view of the above it is most respectfully prayed that; i.An appropriate Writ may graciously be issued ii.The impugned order dated 16.03.2012 qua the, posting of Respondent No.3 may kindly be declared as illegal/unlawful, coram-non-judice, void ab initio and be set aside. iii.The Respondent No.1 may kindly be directed to issue appointment/posting Order of the Petitioner as Principal, Govt. Central Model School, Lower Mall, Lahore. iv.Writ may kindly be accepted with all consequential benefits. Any other relief deemed appropriate in the circumstances may also kindly be awarded to the petitioner."
9. The afore-quoted prayer clause of the original Writ Petition renders it crystal clear that in addition to beseeching for his appointment against the post of Principal the petitioner also put a challenge to order, dated 16.03.2012 whereby respondent No.3 was posted against the post of Principal.
10. Moreover, during pendency of this petition the petitioner filed an application (C.M. No.654/2016) seeking amendment of the Writ. Petition on the ground that as the period of contract of respondent No.3 was extended through order, dated 13.04.2015, he be allowed to challenge said order as well which application was allowed vide order, dated 23.02.2016. Pursuant to the said order the petitioner filed amended petition prayer whereof reads as under:- "In view of the above it is most respectfully prayed that; i.An appropriate Writ may graciously be issued. ii.The Respondent No.3 may kindly be asked that under what authority of law he is holding the post of Principal, Govt. Central Model School, Lower Mall, Lahore. iii. The impugned orders dated 16.03.2012, 26.04.2012, 21.06.2012 and 13.04.2015 of Respondent No.3's appointment as Principal, Government Central Model School, Lahore may kindly be declared as illegal/unlawful, coram-non-judice, void ab initio and be set aside. i. The Respondent No.2 may kindly be directed to appoint any suitable qualified person against the post of Principal, Govt. Central Model School, Lower Mall, Lahore that is too in pursuance of competitive recruitment process in accordance with law. The petitioner is ready to openly contest for the post in competitive recruitment process adopting fair procedure. ii. Writ may kindly be accepted with all consequential benefits.
11. Any other relief deemed appropriate in the circumstances may also kindly be awarded to the Petitioner."
12. A cursory glance over the afore-quoted prayer of the amended Writ Petition shows that in addition to his initial prayer challenging eligibility of respondent No.3 to hold the post of the Principal the petitioner also assailed legality of subsequent orders issued by the competent authority regarding appointment, of respondent No.3 on contract basis and its subsequent extension. Further, the respondents having not challenged order dated 23.02.2016 passed by this Court permitting the petitioner to amend the petition has acquiesced therewith. In this scenario, plea of learned counsel for respondent No.3 that appointment of respondent No.3 was not challenged by the petitioner, has no worth.
9. Insofar as contention of learned counsel for respondent No.3 that as the petitioner challenged appointment of respondent No.3 for his personal gain, instant petition cannot be considered in the nature of quo warranto is concerned, suffice it to note that when appointment/ posting of a person is challenged in respect of merit against a particular post the same cannot be treated as in the nature of quo warranto however when eligibility of a person to hold a particular post is challenged, the said embargo does not impede the way of a person to approach this Court. Insofar as case in hand is concerned, the petitioner has specifically averred that respondent No.3 after his retirement was not eligible for appointment on contract basis especially when he crossed the maxim age limit of 63 years. Moreover, the petitioner in addition to his official status also maintains his identity as common citizen of the country.
13. 10.Now reverting to merits of the case I have noted that according to the provisions of the West Pakistan Government Educational and Training Institutions Ordinance, 1960 (the Ordinance, 1960) the post of Principal was to be filled according to the Regulations to be framed under the said Ordinance. While exercising powers under section 18 of the Ordinance, 1960, the competent authority approved requisite Regulations which were circulated through Notification No.1117/GMS/93, dated 25.10.1993 according to which if a contractual appointment was to be undertaken the same was to be confined only to three years or till the crossing of age limit of 63 years by the incumbent. The said Regulations were lastly amended in the year as the Rules, 2014.
14. Learned counsel for the petitioner has relied upon Regulation No.21(b)(iii) of the Regulations, 2014 according to which no person can be appointed on contract basis beyond the age of 63 years as an employee. Admittedly, at the time of appointment of respondent No.3 in the year 2012 he had already crossed the maximum age limit of 63 years. Further, according to Regulation No.21(b)(vi) of the Regulations. 2014 contract appointments are to N made by the respective appointing authorities on the recommendations of the concerned Selection Committee. There is nothing on record to show that respondent No.3 was ever recommended by the Selection Committee.
11. Learned counsel representing respondent No.2 as well as learned counsel for respondent No.3 and the learned Additional Advocate General has taken categorical stance that as respondent No.3 was appointed by way of transfer there was no need of advertisement. Admittedly, respondent No.3 stood retired from government service on 06.04.2012, therefore, it cannot be considered that at the time of his appointment on contract basis he was in government service.
15. According to Regulation No.21(b)(viii)(b) of the Regulations, 2014 appointment against the post of the Principal can be made by way of transfer but the same is subject to the certain criteria. As per the said clause the Board was bound to invite three to five candidates from the concerned department and after assessing their eligibility one of them was to be appointed against the post of the Principal. There is nothing on record to show that there had been any deliberations by the Board after nomination of 3 to 5 persons as per the Regulations, 2014. In this backdrop contention of the respondents that respondent No.3 was appointed against the post of Principal by way of transfer cannot be given any weightage.
16. The legal status of the appointments without their proper advertisement came under discussion before the apex Court of the country in the case of Ch. Muhammad Akram (Supra). The Hon'ble Supreme Court of Pakistan, while dealing with the consequences of appointment of any person against a particular post without advertisement has inter-alia resolved as under:- "52. We have noticed that the Chief Justice Islamabad High Court has exercised powers under Rule 26 of the Lahore High Court and under Rule 16 of the Islamabad High Court to alter the eligibility and qualification for appointment as well as promotion within the Establish of Islamabad High Court. We hold that the Chief Justice has lost sight of the scheme of the Rules by appointing Respondents and others in the Establishment of Islamabad High Court. We have also noticed that the provisions of Rules that provide for mandatory competitive test for the appointment of employees in the Islamabad High Court Establishment were not followed, nor any advertisement was made to invite applications of eligible candidates. The justification that the Islamabad High Court was a new Establishment is not sufficient to override the mandatory requirement for the appointments. As a result, a number of meritorious and eligible candidates have been deprived of their fundamental right to seek employment through a competitive examination as provided under Article 18 of the Constitution."
17. 12.Another interesting fact of the instant case is that though respondent No.3 was appointed as Principal on contract basis in the year 2012 whereas the respondents are hinging upon the Regulations framed in the year 2014. Moreover, on the one hand the respondents adopted clear cut stance that there was no need of advertisement to fill up the post of the Principal but on the other they themselves having undertaken such exercise twice inconsistent approach on their part is established.
18. 13.Learned counsel for the respondents, while portraying respondent No.3, as indispensable for the institution has argued that as there was no suitable candidate, respondent No.3 was appointed by the competent authority in view of his experience spreading over decades. The apex Court of the country in the case of Pakistan Tobacco Board and another v. Tahir Raza and others (2007 SCMR 97) while dealing with re-appointment of a person after his retirement has inter-alia observed as under:-- "5. Perusal of the said rule shows that not only it is the President of Pakistan who is the repository of discretion but also that re-employment is permissible only in public interest. Merely because petitioner No.2 was described as hardworking and efficient officer did not authorize the Federal Government to bypass the said rule".
19. It is very ironical that the Competent authority failed to find out any suitable candidate against the post of the Principal from the entire province having population of millions of people. If such a practice is allowed to be followed perhaps nobody would like to retire from government service.
20. Posting of respondent No.3 as Principal on additional charge basis and then his appointment on contract basis and further extension of his contract in violation of stipulation of maximum age limit is inconsistent with the norms of social justice.
21. 14.Learned counsel for the respondent have not uttered a word as to why recruitment process pursuant to the advertisement got published by respondent No.2, after decision of the matter (W.P.
22. No.7741/2011) by this Court (on 06.07.2011) was not finalized which fact alone is indiscernable on the part of the competent authority. If the competent authority was of the view that the petitioner could not be appointed against the post in question efforts were to be made for selection of somebody else through open contest.
23. 15.Now coming to the point of lathes, raised by learned counsel representing the respondents. I have noted that the petitioner originally assailed the posting of respondent No.3 on additional charge basis and through amended petition he has also put a challenge to appointment of respondent No.3 on contract basis and its subsequent extension through order dated 13.04.2015. It is trite law that when law has required an act to be done in a particular way the same could not be deviated. Reliance in this regard is placed on the case reported as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). Insofar as case in hand is concerned, after publication of the advertisements the Board was bound to pass order on the recommendations of the Selection Committee but having not done so it deviated from the prescribed procedure.
24. 16.It is imperative to note that the Hon'ble Supreme Court of Pakistan, in Suo Motu Case No.24 of 2010 (2011 SCMR 582) has taken serious note of the appointments of retired employees on contract basis without fulfillment of requisite criteria. At the cost of repetition, it is reiterated that as respondent No.3 was appointed without adopting the due procedure especially when he has already crossed the upper-age limit his appointment cannot be validated this Court in exercise of Constitutional jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
25. 17.For what has been discussed above, instant petition is accepted and appointment of respondent No.3 against the post of the Principal on contract basis is declared illegal. As a result, respondent No.1 is directed to ensure the appointment against the said post afresh in terms of the relevant rules. No order as to cost.