' Brief facts of the case are that the petitioner was working as Junior' Clerk in the office of the Deputy Commissioner, Rawalpindi. He applied for fresh appointment as Naib-Tehsildar being a graduate, vide his application dated 12-6-1987, placed on record. The Chief Minister, Punjab was competent authority to make selection of the candidates for the appointment applied for. The Chief Minister, Punjab issued order for appointment of the petitioner as Naib-Tehsildar and conveyed the direction to the Commissioner, Rawalpindi Division, Rawalpindi. It was not complied with by the Commissioner, Rawalpindi Division, Rawalpindi as no vacancy of Naib-Tehsildar was available at that time. However, a letter No, EB-A-II-3-A-1180, dated 15-2-1988 was addressed by respondent No, 2 to respondent No, 3 (Secretary to the Chief Minister). According to this letter the Chief Minister, Punjab agreed to the selection of the following candidates as Naib-Tehsildars in the Rawalpindi Division:--
(1) Mr. Naqeeb Ullah Zai.
(2) Mr. Muhammad Abdul Zahoor (the petitioner).
(3) Mr. Muhammad Ejaz.
2. Before this, a summary regarding the appointment of Muhammad Abdul Zahoor was submitted to the Secretary to the Chief Minister, Punjab on 22-6-1987, wherein it was stated that-there was no vacancy available to NaibTehsildar in Rawalpindi Division and the Chief Minister, Punjab observed that the application be taken up when there was any vacancy of Naib-Tehsildar available. As far as para. 1 of this letter was concerned, it clearly showed that appointment letter was issued by the Chief Minister, Punjab to the aforesaid applicants vide letter No, EB-A-II-3-A-1180, dated 15-2-1988.
According to para. 4 of this letter, it was further conveyed to the Secretary to the Chief Minister, Punjab that due to promotion of some Naib-Tehsildars, two regular posts of Naib-Tehsildars had become available besides one leave reserve vacancy. The Secretary to the Chief Minister, Punjab was requested that if approved, the three applicants would be appointed as Naib-Tehsildars on ad hoc basis against those vacancies in relaxation of the procedure and rules, where necessary. As soon as the regular post of Naib-Tehsildar became available, the candidate appointed against the leave reserve vacancy would be adjusted accordingly.
3., In support of the above observations, it will be appropriate to quote the aforesaid letter dated 15-2-1988, which reads as follow:-- "Subject: APPOINTMENT OF NAIB-TEHSILDARS ' The Chief Minister, Punjab has been pleased to issue orders for appointment of the following applicants as Naib-Tehsildar in Rawalpindi Division:--
(1) Mr. Naqeeb Ullah Zai.
(2) Mr. Muhammad Abdul Zahoor (the petitioner).
(3) Mr. Muhammad Ejaz.
2. Copies of the applications containing orders of the Chief Minister, Punjab, are enclosed.
3. Earlier, a summary on the application of Mr. Muhammad Abdul Zahoor was submitted to the Chief Minister, Punjab on 22-6-1987 in which it had been stated that at that time there was no vacancy of NaibTehsildar in this Division and the Chief Minister was pleased to observe that the application may be taken up when there is a vacancy.
4. Now due to promotion of some Naib-Tehsildars two regular posts of Naib-Tehsildars have become available besides a leave reserve vacancy.
5. If approved, the three applicants may be appointed as Naib-Tehsildars on ad hoc basis against these vacancies in relaxation of the procedure and rules, where necessary. As soon as a regular post of Naib-Tehsildar becomes available, the candidate appointed against the leave reserve vacancy shall be adjusted accordingly".
4. From the above-quoted letter the name of the petitioner was mentioned at Sr.No,2 amongst the selectees. But again by contravening the sequence Mr. Muhammad Ejaz, who was at Sr. No,3 in the letter, was appointed as NaibTehsildar vide letter No,294 PA-EB, dated 1-3-1988.
5. The respondent No, 2 again vide letter No,EB-A-II-3-A/1676, dated 6-3-1988 solicited the formal approval of the Chief Minister, Punjab for appointment of the Petitioner but another person namely Mr. Abdul Qadoos was given appointment letter in preference to the petitioner. Thus the selectees at Sr.No,1 Naqeeb Ullah Zai, Mr. Muhammad Ejaz at Sr.No,3 and Mr. Abdul Qadoos, whose name was much below to the name of the petitioner, were awarded by appointment letter. This action on the part of respondents was highly discriminatory, keeping in view facts and circumstances of the case and tantamounts to step-motherly treatment, which is against the natural justice.
6. The petitioner feeling aggrieved, filed certain applications to the respondents to redress his grievances but in vain. The respondents adopted delaying tactics by giving number of excuses.
Here it may also be mentioned that 33 other candidates were also appointed later on in the Rawalpindi Division, though they were subsequent selectees to the petitioner. Apparently this action on the part of the respondents to the extent of the petitioner was against the rule of equity and good conscience.
7. Learned counsel for the petitioner has also pointed out that the candidates mentioned at Sr. Nos.
24, 28, 41, 43, 45, 53 and 55 were quite of overage. They were granted relaxation at the time when they were awarded with the appointment letters. Whereas in the case of the petitioner no exceptional circumstances were there, calling for the relaxation by the competent authority. It is most unfortunate case that a poor fellow who was serving as Junior Clerk, but passed graduation and having other quality and qualification was singled out. All the subsequent appointments are not only illegal but wrong. This act of the respondents has no sanctity.
8. Ultimately, having no remedy available, the petitioner filed the present writ petition. Learned counsel for the petitioner seeks that the respondents be directed to issue appointment letter in favour of the petitioner as Naib-Tehsildar. This writ petition was admitted. Report and parawise comments called for from the respondents and placed on record.
9. Vide order dated 24-5-1995 the following observations were made by this Court:- "Raja Muhammad Iqbal, A.C. After having fresh instructions from the Commissioner, Rawalpindi Division, Rawalpindi states:---
(i) That copy of the order passed by the then Chief Minister is not on the record of this office;
(ii) that on 1-3-1988 a letter was sent to the Secretary to the then Chief Minister for sending the original order passed by the then Chief Minister in the matter. In spite of that copy of that order was not sent till todate; and
(iii) that the Commissioner, Rawalpindi Division, Rawalpindi states that even if copy of the order of the then Chief Minister is procured/arranged from the office of the Secretary concerned that cannot now be carried out in view of the procedure prescribed for the recruitment/appointment of Naib-Tehsildars.
2. At this stage, learned counsel for the petitioner seeks time to implead all the 37 Naib-Tehsildars who were selected/appointed after 'the selection of the present petitioner. He maintains that if the contentions raised on behalf of the Commissioner, Rawalpindi Division, Rawalpindi are considered correct then these 37 newly appointed NaibTehsildars shall also have no right to remain in service.
He further maintains that wrong done by the authority cannot be made the petitioner to suffer.
3. Learned counsel for the petitioner is allowed to implead them as party in the petition. The amended petition be submitted within 10 days. Keeping in view facts and circumstances of the case, it is in the interest of justice that no further appointment of Naib-Tehsildar be made till the final decision of this petition and the Commissioner, Rawalpindi Division, Rawalpindi be informed accordingly."
10. On submission of amended writ petition, subsequent selectees were also impleaded as respondents. This drill was carried out, to provide opportunity to them to make submission about their view points with regard to the selection/appointment as Naib-Tehsildar. Some of them engaged counsel who represented them and participated in the final arguments.
11. These persons were impleaded as party/respondents in this case on the following grounds:--- "These persons have been impleaded as party on the grounds:---
(a) That the petitioner was selected alongwith Muhammad Ijaz and others on 15-2-1988;
(b) that Naqeeb Ullah Zai, was not interested to be absorbed, as such he left. Muhammad Ijaz, who was at Sr.No,3 in the selection list, was absorbed as Naib-Tehsildar and is working, as such. As far as the petitioner is concerned, he was denied the benefit on the ground that no vacancy of Naib- Tehsildar was available;
(c) that as is evident, 33 other persons were selected and absorbed later on agains't vacant posts.
This being admitted position the version of the Commissioner that since no vacancy was available they failed to absorb the petitioner, has no substance; and
(d) that on the basis of aforesaid grounds, the subsequent selectees are allowed to be impleaded as party in the writ petition. The amended writ petition filed today be registered and given the same number.
2. I have heard the learned counsel for the parties and also assisted by the learned A.A.-G. In the matter with regard to the appointments of all the 33 Naib-Tehsildars during the year 1988-1991. One fact is admitted that the present petitioner's case is at par with that of the other respondents, who were subsequently selected. But for the reasons best known to the administration discriminatory attitude had been adopted with regard to the petitioner in denying his right to absorb against vacant post, which was available at that time. A formal message was conveyed through the Assistant Commissioner, to the Commissioner, Rawalpindi Division, Rawalpindi, as to whether the present petitioner could be absorbed against any post of Naib-Tehsildar. But he has informed the Court in negative. There was no alternative except to take up the matter of the selection of all the Naib-Tehsildars being connected and relevant to the present case.
3. Learned counsel further contends that there is no difference whatsoever, as far as the method of selection is concerned, but the competent Authority refused to adopt in the matter. Learned A.A.-G.
Has not opposed this argument after perusal of the record of the office of the Commissioner, Rawalpindi Division, Rawalpindi. Except that the original order passed by the then Chief Minister Punjab is not available on the record. He has further pointed out that number of letters were written to the Secretary to the Chief Minister, Punjab for sending the original order to the office of the Commissioner, Rawalpindi Division, Rawalpindi. But not complied with.
4. Under these circumstances, the Court is of the view--
(a) that it is prima facie proved that the petitioner was to be appointed as Naib-Tehsildar;
(b) that the procedure adopted for the selection of the petitioner and the other co-selectees was the same as adopted in the case of the other selectees;
(c) that he had a right to be absorbed as and when any vacancy was available. From the record it is evident that there were number of vacancies available after the selection of the petitioner for the said post. But he was not absorbed; and
(d) that presently objection raised by the Commissioner, Rawalpindi Division, Rawalpindi through Raja Muhammad Iqbal, Assistant Commissioner that procedure adopted for the selection of NaibTehsildars during the year 1988-1991 was different and thereafter number of changes have been made therein. In view of the amended rules the petitioner's case cannot be considered for appointment at this belated stage. However, availability of vacancies has not been denied.
5. At this stage, Dr. G.S. Khan learned counsel for the petitioner has pointed out that it cannot be considered as "a belated stage" because the petitioner is pursuing the case throughout by making certain representations. In spite of that no proper and final decision has go far been made. In addition to that, it is general principle of law that Court/Authority's mistake cannot be a cause to penalise the petitioner.
6. He further contends that amendment presently made in the rules for the Selection of Naib- Tehsildars cannot be given affect retrospectively. The ,refusal by the learned Commissioner, Rawalpindi Division, Rawalpindi at this stage, that he cannot absorb the petitioner as Naib- Tehsildar, has prima facie no legal justification.
7. Learned counsel for the petitioner relied upon the judgment reported as PLD 1964 SC 302(h). He maintains that rights of the persons cannot be allowed to be adversely affected by disappearance and non-availability. Of the documents from the official record. Thus, the version of the Commissioner that order passed by the then Chief Minister, Punjab has no value, cannot be given any importance in the given circumstances.
8. In view of the facts and circumstances of the case, learned counsel for the petitioner seeks the following remedies:--
(a) That it is Constitutional guaranteed right of the petitioner that he cannot be treated discriminately. His case is at par with that of the co-selectees; and
(b) that allowing the petitioner to suffer any more is not in the interest of justice because the matter had already been delayed for considerable time whereby the petitioner has suffered much.
9. In view of the above, I am of the view that the petitioner is entitled to be absorbed immediately as Naib-Tehsildar by the competent Authority i,e, the Commissioner, Rawalpindi Division, Rawalpindi. The petitioner is, therefore, granted interim relief with the direction that the Commissioner, Rawalpindi Division, Rawalpindi shall absorb him as Naib-Tehsildar within seven days, subject to the final decision of this writ petition. As far as the other respondents are concerned, notice be issued to them on the petitioner's expenses, to participate in the proceedings of the case. As they are necessary party and their presence before the Court is essential so that identical matter i,e, selection and appointments of these selectees, be decided, indiscriminately and not having recourse to different ways and means which may be derogatory to the administration of justice. This case be treated as part heard and office is directed to fix this case after vacation."
12. Against order dated 29-5-1995, the Province of Punjab through Chief Secretary etc. Filed an appeal before the Supreme Court of Pakistan vide Civil Miscellaneous Application No, 456 of 1995 in Civil Petition No, 317-C&M of 1995. The case was placed before His Lordship Mr. Justice Raja Afrasiab Khan. The Hon'ble Judge was pleased to pass the following orders:-- "After hearing the learned counsel at some length, I have not been persuaded to grant interim relief to the petitioners. Nevertheless, the High Court may be requested to hear the main matter for its disposal within two weeks after its re-opening. The application for interim relief is, thus, dismissed."
13. After the decision of the Hon'ble Supreme Court of Pakistan, the petitioner submitted an application to the Commissioner, Rawalpindi Division, Rawalpindi and sought relief that he may be appointed as Naib-Tehsildar in compliance with the order dated 29-5-1995 announced by this Court. Through this latter order, the Commissioner, Rawalpindi Division, Rawalpindi was directed to absorb the petitioner immediately as Naib-Tehsildar in the Rawalpindi Division, subject to final decision of this writ petition. This interim relief was granted to the petitioner against the respondents. The respondent No,2 complied with the order but after having failed in the Supreme Court of Pakistan. It has been informed this Court that presently the petitioner is working as Naib- Tehsildar and attending the departmental course.
14. In pursuance of the direction of the Hon'ble Supreme Court of Pakistan, the matter was again fixed for arguments. Parties were directed to appear and argue the case. However, certain dates were obtained and the case used to be adjourned for some reasons. Ultimately, the learned counsel for the parties argued the case quite at length.
15. Learned counsel for the petitioner contends as follow:--
(a) That the respondents conceded that the then Chief Minister, Punjab was pleased to issue order for the appointments of the following applicants as Naib-Tehsildars in the Rawalpindi Division:--
(1) Mr. Nageb Ullah Zai.
(2) Mr. Muhammad Abdul Zahoor.
(3) Mr. Muhammad Ejaz.
(b) that at some stage some measures were taken by the Commissioner, Rawalpindi Division, Rawalpindi to absorb the applicants. However, something happened later on, which deprived the petitioner and he was given step-motherly treatment;
(c) that the petitioner had been approaching the authorities through written and verbal applications constantly to seek that his grievances may be redressed, but failed. Ultimately, he filed the present writ petition;
(d) that delay had not occurred on the part of the petitioner's conduct but apparently for the reasons that the respondents and the other connected authorities had adopted delaying tactics; ( e )that the petitioner fulfilled the qualification and qualities to be appointed as Naib-Tehsildar.
The Chief Minister, Punjab selected him and his name was mentioned at Sr. No, 2 in the list of selectees. There was nothing wrong on his part to ignore him and in fact he was ignored without telling him any legal reason therefor;
(f) that the petitioner was not given opportunity to be heard in the matter;
(g) that the petitioner applied for the said post in June, 1987, whereas the appointment order was passed in his favour in February, 1988 under the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962;
(h) that the petitioner was even entitled to be appointed as Naib-Tehsildar on the ground of Rule 5 of the said Rules. As held in the PLD 1988 SC 155, which shows that 50% vacancies of the Naib- Tehsildars be filled through initial recruitment and out of that 12% of the posts would be allocated to the Ministerial Staff. Keeping in view this aspect, the petitioner was rightly entitled to be appointed as Naib-Tehsildar out of the 40 posts of Naib-Tehsildars so far filled by the respondents;
(i) that in letter No, EB-A-II-3-A/1180, dated 15-2-1988 it is clearly mentioned that three posts of Naib-Tehsildars were available at that time in the Rawalpindi Division. But quite arbitrarily the petitioner was ignored and Muhammad Ijaz whose name was at Sr. No, 3 (after the petitioner was appointed as Naib-Tehsildar;
(j) that last application/request of the petitioner was rejected by respondent No, 2 vide letter dated 4-1-1993. The basis for the rejection of the application was of stereotype by saying that there was no vacancy of Naib-Tehsildar against which the applicant could be appointed;
(k) that there are number of letters on record which do show that this negative answer was the consequence for not making the arrangement by some one regarding the selection of the petitioner;
(1) that originally the respondents conceded the order of the Chief Minister, Punjab for appointment of the petitioner as Naib-Tehsildar. But later on may be for some ulterior influence they turned their faces and started to make lame excuses for depriving him;
(m) that presently under Rules 4 and 14 of the Naib-Tehsildari Rules of 1962 ibid, the Commissioner of a Division has been delegated the powers for appointment against the said posts. In fact it was quite within the competency of the Commissioner to issue formal order of appointment to the petitioner. The action of the respondents based on discriminating treatment is not permissible; and
(n) that it is most unfortunate that some bureaucrats of this country give preference in some affairs which is highly deplorable for the fair administration. These type of actions create hatred in the minds of the citizens. Poor or rich all are the citizens of Pakistan. We should be proud of provide "justice". It is mandatory to come to the rescue of the aggrieved.
16. On the other hand, learned State Counsel and some counsel for the respondents argued the case and stated that long ago the matter was put up by the petitioner for his appointment as Naib-Tehsildar. At one stage, a letter was received from the Chief Minister, Punjab but it was not consolatory in nature. At this stage, the Commissioner, Rawalpindi Division was called in person to inquire about the letter. He accepted its issuance but tried to give different meaning, saying that no letter of appointment was ever issued by the Chief Minister, Punjab. First three lines of the letter were read out to him but he insisted on his point of view. Lastly it was submitted on behalf of the respondents that the matter stood delayed as such, no action would be advisable in the matter, at this stage.
17. I have heard the arguments of the learned counsel for the patties and gone through the record minutely. After perusal of the letters, exchanged between the two offices regarding the appointment of the petitioner as NaibTehsildar, I came to the conclusion that the Chief Minister, Punjab selected the petitioner and issued appointment letter in the year 1988. Certain clarifications of absorbing the petitioner were sought by the Commissioner, Rawalpindi Division, Rawalpindi by sending letters to the Secretary to the Chief Minister, Punjab. All these letters do show that the petitioner was also amongst the selectees at Sr. No,
2. In spite of that he was not awarded by appointment letter, by making excuses of not availability of the posts. But later on a summary/proposal was sent to the Secretary to the Chief Minister, Punjab that three vacancies were available there. It was the job of the respondents to come to some conclusion for issuance of the appointment letter/absorption in compliance with the order passed by the 'Chief Minister, Punjab. The facts and circumstances of the case do show that in this case it was the bounden duty of the Commissioner to issue appointment letter. When there was no fault on the part of the petitioner. It is a sheer bad luck of the petitioner that the matter was delayed by adopting delaying tactics.
18. The petitioner's name Was at Sr. No, 2 in the selectees' list. 33 persons or more were appointed as Naib-Tehsildars, thereafter. They are lucky to have ,appointment letters, ignoring the petitioner who was at Sr.No,
2. It is highly unfortunate that 33 posts were available and candidates were appointed as NaibTehsildars as mentioned in the selectees' list but for the petitioner it was wrongly said that there was no post available.
19. The action on the part of the respondents seems to be highly mala fide. On the question of absorption of the petitioner, no cogent reason was put forwarded by the respondents during arguments, as to why the petitioner was deprived of his right. Before departing from the case, I must observe that right of every citizen to enjoy protection of law is guaranteed by the Constitution.
The officers who were charged with duty of deciding the matter concerning the rights of other persons are bound to do' so in accordance with law and the law alone. The Superior Courts being responsible for the fair administration of the rule of law, do not allow discriminatory actions. If an attempt is made by the administration to deprive some body of his right then no citizen can be put in state of helplessness. In the present case at least one thing is very clear that discriminatory action has been taken without justification and adopting any legal course. Consequently, I again say that vested right having been granted in favour of a party by way of selection, the non- issuance of appointment letter is a violation of law. Hence rule of law justifies the issuance of appropriate directions by the High Court and the other Superior Courts in Constitutional jurisdiction.
20. During arguments it was stated that original letter whereby the Chief Minister, Punjab was pleased to issue appointment letter is not available on record. Many efforts have been made to find out but it could not be traced. Non-availability of the letter, was the cause not to take any action in the matter. The learned counsel for the petitioner referred PLD 1964 SC 302 in which the Hon'ble Judges of the High Court were pleased to observe that a person cannot be deprived of his right due to disappearance of the documents from the official record. The Court does not like to enter into the question as to how and why the document. Disappeared from the file. Once the Commissioner, Rawalpindi Division, Rawalpindi had already conceded the issuance of the appointment letter by the Chief Minister, Punjab, abruptly playing hide and seek with a view to avoid the issuance of the appointment letter to the petitioner, is not appreciated.
21. Learned counsel for the petitioner referred the following judgments:--
(a) PLD 1964 SC 302(h).
(b) 1986 CLC 1408.
(c) PLD 1988 SC 376 and 415.
(d) PLD 1991 SC 58.
(e) 1993 SCMR 1326. (t) 1989 PLC (C.S.) 785. (g) 1993 PLC (C.S.) 345.
(h) PLD J985 SC 195.
(i) PLD 1990 SC 672.
(j) PLD 1993 Kar. 140 & 144.
22. I have minutely gone through the judgments. My humble view is that it is a case of extreme discrimination and violation of Constitutional provisions.
23. In view of the above, the writ petition is accepted. The petitioner has already been absorbed as Naib-Tehsildar under training, under the interim relief order passed by this Court. His appointment as Naib-Tehsildar be regularised as "Valid Appointment" and he be awarded all the benefits for which he is entitled as Naib-Tehsildar. In future, he will be governed by the relevant law and rules applicable in the matter. No order as to costs.