' The appellant Bashir Ahmed was appointed on the recommendations of the Recruitment Committee of the College of Home Economics, Gulberg, Lahore as Temporary Baildar with effect from 7-12-1983 to 6-3-1984 i.e, for a period of 3 months against the leave vacancy of Mst. Sosan, Baildar proceeding leave abroad vide order at Annexure `A' (page 13). His tenure of appointment was extended for a further period of 9 months with effect from 7-3-1984 to 6-12-1984 vide order at Annexure `B' (page 15). He was eventually transferred and posted as Baildar with effect from 26-1- 1986 against vacant post of Mr. Sher Zaman vide order at Annexure 'C' (page 19). On the directions of the Director of Education (Colleges), Lahore Division contained in his memo. Dated 26-4-1987, however, the Principal of the aforesaid College cancelled the requisite adjustment of the appellant and terminated his service with effect from 14-5-1987 on 14 days' notice constituting a condition of his temporary service vide order, dated 30-4-1987 at Annexure 'F' (page 23). The appellant filed the departmental appeal on 12-5-1987 to the Secretary Education. His appeal was eventually taken up by the respondent No, 2 who called him for personal hearing on 6-7-1989 and his appeal was eventually rejected vide letter, dated 31-7-1989 Annexure 'M' (page 39) with the observations reproduced below:-- "(1) The Principal, College of Home Economics Gulberg, Lahore appointed you as Baildar when there was a Ban on recruitment, without getting N.O.C. From the Government.
(2) On receipt of Medical Report you were found overaged. The relaxation of overage was refused by the Department.
(3) The Principal was fully competent to terminate you in accordance with the terms and conditions exercising her powers as appointing authority for the abovesaid reasons.
2. The appellant consequently filed the instant appeal before this Tribunal on 21-8-1989. In the course of his arguments, the learned counsel for the appellant pointed out that the services of the appellant were terminated although he had earlier been adjusted against a vacant post, on an objection raised by the Director Education that the said adjustment had not been ordered by observing the appropriate selection procedure. According to the learned counsel, the appellant was .Never asked to appear before the selection authority again for interview alongwith the other candidates even if it was presumed that he could be treated as an ad hoc employee as he had earlier been recruited on temporary basis against- a leave vacancy. According to him, the services of the appellant could not have been terminated without finding out a replacement through Selection Authority as required under section 10(i)(ii) of the Punjab Civil Servants Act, 1974. He further observed that the appellant had already been cleared for appointment as Baildar by the Departmental Recruitment Committee although against a leave vacancy and his suitability was not required to be determined again when a clear vacancy had become available for him.
3. I have perused the record and have heard the arguments advanced by the learned District Attorney as well who relied on the written objections. The written objections filed by the respondent Department do not show that the appellant's services were dispensed with due to non-availability of a vacancy, as it has been contended that the appellant had failed to qualify for regular appointment (owing to ban on recruitment and his age factor) against the vacancy of Sher Zaman who is stated to have been promoted as Lab. Attendant on merits. The order of termination of the appellant from service without giving him a show-cause notice and without pinpointing misconduct on his part could not, therefore, be sustained in law.
4. The factual position is that the appellant Bashir Ahmad was appointed against a leave vacancy on the recommendation of the appropriate selection authority as is evident from the order of the appointment, dated 7-12-1983 (Annexure A/13). Since he was eventually adjusted against a clear vacancy caused due to the promotion of Sher Zaman as Lab. Attendant, it would not be necessary to subject the appellant to undergo the ordeal of appearing before the Selection Authority again at the time of his final adjustment against the vacancy caused due to the promotion of Sher Zaman.
He shall, therefore, be considered to have been regularised as Baildar with effect from the date he was adjusted as such, vide order, dated 26-1-1986, the appellant was adjudged to be of 36/37 years of age. Rejecting him on this ground a few years later could hardly be justified particularly when higher age is generally prescribed in the Recruitment Rules to man such posts.
5. Moreover, the existence of ban on recruitment cannot be invoked against the appellant as it was the responsibility of the Appointing Authority (in consultation with the Departmental Recruitment Committee) to have observed the existing rules/instructions on the subject. Failure of the agents of the State would not obviously bind down the beneficiary.
6. Further, continuous or intermittent imposition of ban on recruitments against posts which are created by Government itself shows an inherent contradiction in public policy. If Government does not intend to make recruitment, there is no point in creating posts with the approval of the Legislature. Moreover, the imposition of ban on recruitment causes frustration amongst the unemployed apart from adversely affecting the performance of the public sector. The cost in terms of the service hours wasted and the adverse effect on the social behaviour of the young generation is indeed enormous, the financial savings on keeping the posts vacant being negligible in face of the calamitous effects of such a Policy. I am, therefore, of the considered view that ban on recruitment can and should be imposed only with the approval of the legislature, as the continuance of vacancies/posts bears the stamp of that august authority and the decision not to fill the vacancies in case there are genuine constraints to do so must also have the approval of the Legislature.
7. In view of the foregoing observations, the appeal is allowed, the impugned orders are set aside and the appellant is reinstated in service as regular Baildar with immediate effect. He shall also be entitled to all the back benefits viz, pay, allowances etc. From the date his services were terminated till he resumes duty.