' The relevant facts for the decision of this Constitutional petition are that the petitioners Nos.1 and 3 are serving as XENs while petitioner No,2 as Assistant Engineer in the Local Government and Rural Development Department (hereinafter to be referred as LG&RD). The grievance voiced through this Constitutional petition is that in spite of the fact that the officials of the rank of XEN are available in the Department and according to the Punjab Local Government and Rural Development Department Service Rules, 1981 (hereinafter to be referred as Rules of 1981) the XENs are to be appointed 100% by promotion, the respondents Nos. 3 to 4, who were Assistant Engineers in the C&W Department manoeuvred their posting as XENs in the LG&RD Department. The petitioners originally also claimed their appointments beside challenging the appointment of respondents Nos.3 and 4 but subsequently moved an application under Order VI, Rule 17, C.P.C. For amendment of the writ petition in order to claim only relief against the appointment of respondents Nos. 3 and
4. The amendment was allowed vide order dated 25-7-1995. The amended writ petition has already been filed. Respondents Nos. 1 and 2 have appeared through Raja Saeed Akram, AA.-G.
While the others are represented by Ch. Ijaz Ahmad, Advocate.
2. The learned counsel for the petitioners argued that the appointment of respondents Nos.3 and 4 in the LG&RD Department is void, against policy of the Government and mala fide. It is added that according to the Rules of 1981 the appointment of the XEN is to be made 100% promotion, therefore, there was no scope for posting of respondents Nos.3 and 4 on deputation basis. It is added that the Government has formulated the policy of deputation keeping in view our own social set up and the desire of a section of the civil servants to occupy the most lucrative posts irrespective of the fact whether they deserve or not. It is added that policy of the Government in such circumstances has force of law and in case of failure Court can set aside the orders. The learned counsel in this behalf has referred to Muhammad Afzal, etc. v. Government of Balochistan, etc. (1995 PLC (C.S.) 567), Sarwar Hussain v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 5 others (1994 PLC (C.S.) 706), unreported judgment in W.P. No, 815 of 1993; Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad and 2 others v. Abdul Rashid (1995 SCMR 1053), Muhammad Latif Khan v. Aliul Hussain Bukhari and 41 others (1993 PLC (C.S.) 297) and Ali Hussain Bokhari and 39 others v. Azad Government of the State of Jammu and Kashmir and others (1992 PLC (C.S.) 289).
3. On the other hand, the learned counsel for respondents Nos.3 and 4 argued that the jurisdiction under Article 199 is subject to other provisions of the Constitution and where there is no adequate remedy. In this behalf, the learned counsel has referred to Clause (1) of Article 199 of the Constitution. It is added that in case of writ of 'quo warranto' the Court can call upon the respondents to show under what authority he is holding a public office. It is submitted that for issuance of writ of 'quo warranto' petitioner may not be an aggrieved person while in other cases covered by clause (c) the person invoking the jurisdiction must be an aggrieved person. It is added that according to section 9 of the Punjab Civil Servants Act, 1974 (hereinafter to be referred as Act of 1974), a civil servant is liable to be transferred to any authority, autonomous body and department. Respondents Nos.3 and 4 having been transferred, therefore, they are holding public offices under authority so the writ petition is not competent. It is argued that Annexures 'C, D and E' appended with the petition are to be read in the light of section 9 of the Act of 1974. The next submission is that the jurisdiction of all Courts including High Court in respect of terms and conditions of civil servants is barred in view of Article 212 of the Constitution of Pakistan read with section 4 of the Punjab Service Tribunals Act, 1974. The learned counsel in this behalf has referred to Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), Abdul Ghaffar Lakhani v. Federal Government of Pakistan and 2 others (PLD 1986 Karachi 525), Sardar Zaheer Ahmad Khan, Advocate v. Mohtarma Benazir Bhutto and another (1994 MLD 397), M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22), Abdul Wahab Khan v. Government of Punjab and 3 others (PLD 1989. SC 508), Muhammad Riaz and others v.
Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others (PLD 1992 SC 204), WAPDA v. Zahoor Ahmed (1993 PLC (C.S.) 842), Province of Punjab through Secretary, Education Department and another v. Saeed Ahmed Khan (PLD 1994 SC 230), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) and Syed Hassan Khan v. Chairman, WAPDA, Lahore and 5 others (1995 SCMR 23). The next legal objection is that 'the petition must be bona fide and in case it lacks fides then the relief should not be allowed to the petitioners. It is maintained that the petition is mala fide because purpose is to secure the posts themselves. The learned counsel in this behalf has referred to Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of West Pakistan (PLD 1957 (W.P.) Karachi 387), Muhammad Sadique v. Muhammad Hussain and 2 others (1983 CLC 2734), Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), A.M. Khan Leghari, CSP, Member, Board of Revenue, West Pakistan v. Government of Pakistan through Secretary to Government of Pakistan, Establishment Division, Rawalpindi and 3 others (PLD 1967 Lahore 227), Azizur Rahman Chowdhry v. M. Nasir Uddin and 5 others (PLD 1965 SC 236), K.
Sivaramakrishnan v. P. Arumugha Mudaliar, Inspector of Registration, Madras-I and another (AIR 1957 Mad. 17) and Rajendarkumar Chandanmal v. Government of State of M.P. And others (AIR 1957 M.P. 60). The next objection is that in case of transfer matters no writ petition is competent. The learned counsel in this behalf has referred to para. 11 of the amended writ petition to argue that appointment of respondents Nos.3 and 4 is merely a transfer, therefore, not amenable to writ jurisdiction. The learned counsel, in this behalf, has referred to Mahmood Ahmad v. Secretary to Government of Punjab, Irrigation and Power Department, Lahore and 2 others (1996 PLC C.S.) 15), Mst. Iffat Naheed and another v. District Education Officer (Women) Elementary, Sheikhupura and another (1995 PLC (C.S) 199), Mst. Shagufta Jabeen v. Deputy District Education Officer (Women), Bhakkar and another (1995 PLC (C.S.) 451), Muhammad Aslam Tahir-ul-Qadri v. Government of Pakistan through Ministry of Defence, Islamabad and 5 others (1995 PLC. (C.S.) 498), Zulfiqar Ali, Patwari v. Government of the Punjab through the Secretary, Board of Revenue and 2 others (1995 PLC (C.S.) 554). Nahid Akhtar v. Director Education (SE), Multan Division, Multan and another 1995 PLC (C.S.) 820, Syed Hassan Khan v. Chairman, WAPDA, Lahore and 5 others (1995 SCMR 23), Nazir Hussain (Ex-Director Excise and Taxation), Administrator Auqaf, N.-W.F.P., Peshawar v. N.-W.F.P.
Through the Chief Secretary/Secretary, Services & General Administration Department, Government of N.-W.F.P., Peshawar and 2 others (1992 SCMR 1843) and Rana Muhammad Sarwar v.
Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), unreported judgments in W.P. No,14286 of 1994, decided on 1-2-1995 and in C.P. No,175.(L) of 1995, decided on 19-3-1995. It is added that the transfer is not a vested right of a civil servant, therefore, no writ petition is competent. In this behalf, the learned counsel has referred to Allah Rakha and another v. Government of the Punjab and others (1980 PLC (C.S.) 397). The other legal objection is that Secretary, C&W Department was a necessary party to the writ petition as the orders have been issued by him, therefore, no direction can be issued and the petition is liable to be dismissed. In this behalf, the learned counsel has referred to Akhtar Ali Khan and another v.
Settlement Commissioner, Peshawar and 4 others (1989 SCMR 506). It is argued that violation of policy is no ground to invoke Constitutional jurisdiction. The learned counsel in this behalf has referred to unreported judgment of Hon'ble Supreme Court in C.P. No, 175(L) of 1995 (supra) and it is explained that the judgment in the case of Abdul Rashid (supra) is not relevant because this was an appeal from the judgment of the Federal Service Tribunal and not against the decision in a writ petition.
4. On merits it is argued that policy contained in Annexures 'G and H' appended with the petition and relied by the learned counsel for the petitioners deal with the deputation to semi-autonomous bodies etc. And not from Government Department to Government Department, therefore, the same is not relevant. It is added that the Rules of 1981 are not binding because those are in conflict with section 9 of the Act of 1974, according to which, a civil servant can be transferred to any post elsewhere. The learned A.A.-G. Argued that the petitioners made a representation against the appointment of respondents Nos.3 and 4, which has been dismissed by the Government, therefore, no writ petition is competent. The learned A.A.-G., in this behalf, has referred to Pervez Masih v.
Director, Atomic Energy Medical Centre, Nishtar College and Hospital, Multan and another (1994 PLC (C.S.) 273).
5. The learned un sel for the petitioners while summing up the arguments submitted that the bar of Article 212 of the Constitution would not come in play in this case because petitioners are not claiming any right or benefit in respect of themselves or their terms and conditions of service. They have simply prayed for issuance of writ of quo warranto calling upon the respondents Nos.3 and 4 to show under what authority they are occupying the public offices. It is added that the deputation policy for all civil servants is the same as is clear from the opening paragraph of Annexure 'G'.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of Constitution, law, rules and the precedents. The admitted position is that petitioners Nos.1 and 3 are serving as XEN and petitioner No,2 as Assistant Engineer in the LG&RD Department while respondents No,3 and 4 were serving as Assistant Engineers in the C&W Department. The names of respondents Nos.3 and 4 appeared at serial Nos.
189 and 224 of the seniority list of the Assistant Engineers in the C&W Department respectively while the promotions have been granted upto serial No,60. The Principal Advisor to C.M. Punjab made a requisition for two officers from C&W Department to be appointed as XEN in the LG&RD Department.
The C&W Department accordingly sent the names of respondents 3 and 4, who accordingly were appointed as XEN vide appointment orders dated 3-1-1994 and 10-1-1994. Petitioner No,2 represented against this appointment of respondents Nos.3 and 4 mainly on the grounds that the officers of the rank of XEN were available and are awaiting posting in the LG&RD Department and that appointment to the post of XEN was to be made 100% by promotion from amongst the Assistant Engineers of the LG&RD Department. The learned counsel added that the petitioners feeling that the respondents have secured posting which they do not deserve through political influence, therefore, they would not get any relief from the Government, proceeded to file the present Constitutional petition. They had originally prayed for declaring the orders of postings of respondents Nos. 3 and 4 in the LG&RD Department as XEN without lawful authority and for direction to respondents Nos. 1 and 2 to act strictly in accordance with law in the matter of posting and promotion of the petitioners. However, they subsequently moved application under Order VI, Rule 17, C.P.C. For the amendment of the writ petition. The application was allowed by this Court vide order dated 25-7-1975. The prayer now reads as under:- "In view of the submissions made, it is most respectfully prayed that respondents Nos. 3 and 4 may be called upon to show before this Hon'ble High Court as to under what authority of law they are holding the posts of Executing Engineers in the Local Government and Rural Development Department. An injunction may, also graciously be issued to respondents Nos. 3 and 4 not to act as Executive Engineers in the Local Government and Rural Development Department. In case of failure on the part of respondents Nos.3 and 4 to show the authority under which they are holding the posts of Executive Engineers in the Local Government and Rural Development Department, their offices may be declared to be vacant."
7. Now before proceeding any further it is relevant to refer to serial No,5 of the Schedule appended to the Rules of 1981. The amended provision as introduced by Notification dated 15-3-1989 reads as under:- "By promotion on the basis of seniority-cum-fitness from among the Assistant Engineers/Assistant Director (Tech.) in the functional unit having 5 years service as such who possess qualification for initial recruitment to the post of Assistant Engineer subject to passing of professional examination prescribed in the PWD Code and are registered with Pakistan Engineering Council as 'Professional Engineers' under the Pakistan Engineering Council Act, 1976. If none is available by promotion then by transfer or initial recruitment."
8. Now I proceed to refer to rule 11 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The same reads as under:-- "11. Appointments by transfer may be made if transfer is prescribed in the relevant service rules as a method of appointment to such post."
' It is, therefore, clear that the appointments of respondents Nos.3 and 4 have been made in flagrant violation of Rules of 1981 as amended up-to-date as well as Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. This is beside the contention of the petitioners that the officers of the rank of XEN are not only available and waiting for posting in the Department but petitioner No,2 is also due for promotion in the relevant functional unit of LG&RD Department.
9. The learned counsel for respondents Nos.3 and 4 argued that this Court has neither any jurisdiction in the matter nor writ petition is competent. The first part of the objection is based on Article 212 of the Constitution of 1973 and section 4 of the Punjab Service Tribunals Act, 1974. The objection is utterly misconceived because under section 4 of the Service Tribunals Act of 1974 a civil servant can assail final order passed against him in respect of 'his' terms and conditions of service whereas in the present writ petition the petitioners have prayed for issuance of writ of 'quo warranto' calling upon respondents Nos.3 and 4 to show under what authority of law they are holding public offices. Therefore, the petitioners have neither any remedy under the Punjab Service Tribunals Act nor the bar of Article 212 would come into operation. The learned counsel for the petitioners in this behalf rightly referred to the judgments of Muhammad Latif Khan and Ali Hussain Bokhari and 39 others (supra). In this behalf, reference can also be made to the judgment of Hon'ble Supreme Court in the case of Muhammad Karim v. Director, Health Services and others (1987 SCMR 295). The relevant portion of the judgment reads as under:- "7. As already mentioned the post of Chief Laboratory Technician fall in the cadre Laboratory Technician. Under the rules applicable to this cadre the said post was to be filled by promotion on the basis of seniority-cum-fitness from among the Laboratory Technicians. By operation of section 9, N.-W.F.P. Civil Servants Act, respondent No,3 who the most senior member of the cadre, was eligible for promotion to this post. It was not the case of the appellant that respondent No,3 too was considered for the post before he was appointed thereto. Respondent No,3 could. Therefore, legitimately feel aggrieved by the introduction of a stranger into his cadre and then being given the most senior appointment reserved for its member. It is difficult to hold that respondent No,3 was not competent to take his grievance to the Service Tribunal. The cadre rules did form part of his terms and conditions of his service and a violation of the same could be agitated by him before the Service Tribunal.
8. As regards the merits of this appeal, it will be noticed that the Provincial Government itself realised the difficulty in posting the appellant as Chief Laboratory Technician as he was not a member of the cadre to which the post belonged. It was for this reason that he was first allowed to change the cadre with retrospective effect before his appointment was made. Now this was clearly a futile exercise as the appellant never held any post in the cadre of Laboratory Technician in the past. It is obvious that in order to be a member of a cadre, a civil servant must hold a post or a lien in a post in that cadre. Consequently despite the decision of the Director permitting the appellant to change his cadre with retrospective effect, he could not be regarded as member of the cadre of Laboratory Technicians. The learned Tribunal was, therefore, justified in setting aside his appointment to a post reserved for the member of that cadre."
' Reference can also be made to another unreported judgment of the Hon'ble Supreme Court in C.P.No,72 of 1993 decided on 22-6-1993, wherein the following decision of the Federal Service Tribunal was upheld.
"9. The arguments on behalf of the respondents based on note under column 4 of serial No,4 of Appendix-I of Store Rules to the effect that the authority could 'adopt any 'mode, for appointment is based on misconception. Primarily the mode of appointment to the post of Dy. General Manager. Is promotion from amongst eligible officers of the Store cadre itself, and the other alternative of posting of Chief Engineer by the Authority is under the circumstances when there is no suitable officer in the Store cadre is available to the Authority. In this case, an eligible officer in the same cadre was available and he should have been considered and if found unfit then the Authority was justified to appoint a Chief Engineer from the Power Wing. The contention of the department that respondent No,2 is senior to the appellant in service has no validity. Power Wing is a different cadre like Store and Finance and the seniority of the officers is relevant only in his own cadre and cannot be considered against the officers in the other cadre."
10. Now coming to the other objection that writ of quo warranto is not competent where the petitioner has not come to the Court with clean hands. It is clear from the earlier paragraphs of this judgment that the respondents are trying to get the redress of their own grievance and they are playing their own game and in that of anybody else. It is true that the promotion is not a guaranteed right of a civil servant but civil servant has a vested right under Article 240 of Constitution of 1973 to be dealt with in accordance with law. The relevant law applicable to the petitioners and respondents Nos.3 and 4 is the Act of 1974. Section 3 which provides that terms and conditions of service of a civil servant shall be as provided in this Act and the Rules while appointments are dealt by section 4. If looked in this background the petitioners can maintain writ of 'quo warranto' to challenge the appointment of respondents Nos.3 and 4 as violative of the law and rules. I am fortified in my view by the judgment in the case of Walayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another (1995 SCMR 650). The relevant portion reads as under:- "9. The contention that no employee has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority, the aggrieved person would be entitled to challenge it. In Ch. Muhammad Insha Ullah and others v.
Chief Conservator of Forests (P & E) and others (PLD 1988 SC 155), it was observed that 'Even if, no vested right exists, if a principle of policy is given effect to and the principle of policy is such which has not matured into a vested right, none can say that in the absence of the vested right, the principle of policy should not be recognized or enforced'. Therefore, in the light of the above observation, the regulation providing for recommendation of the Promotion Board for promotion should have been taken into consideration which cannot be brushed aside lightly without due reason. Respondent No,2 was inducted irregularly, the charge held by the appellant and respondent No,2 was interchanged, * * * * * * * * *. These facts go a long way to point out the illegalities, irregularities and breach of regulation without any just and reasonable ground leading to the conclusion that the impugned order of respondent No,1 was arbitrary, unfair and devoid of good faith. By such acts, the appellant was deprived of promotion which he was entitled under the Regulation "
' The objection is, therefore, without any merit. Reference in this behalf can also be made to the judgments in the cases of Dr. Kamal Hussain and others and Abdul Ghaffar Lakhani (supra).
11. The third legal objection is that the petition against transfer is not competent. The precedents relied by the learned counsel for the respondents are not relevant because in all those cases a civil servant has invoked the Constitutional jurisdiction of High Court against his transfer and High Court held that the matter pertained to terms And conditions of his service, therefore, the relief was not allowed. This is not the case here. The other objection was that quo warranto is not to be issued where an alternate remedy is available but the learned counsel for respondents Nos. 3 and 4 failed to show with reference to the Act of 1974, rules framed thereunder or under the Punjab Service Tribunals Act, 1974 that the petitioners had any remedy. This clearly distinguishes the case in hand from the cases of Javed Hashmi and others and Dr. Kamal Hussain and 7 others (supra).
12. The other objection was that deputation policy relied by the petitioners and appended alongwith petition against Annexures 'G and H' is not relevant because it deals with the deputation of a civil servant to autonomous/semi-autonomous bodies and does not cover posting of a civil servant from Department to Department of the Government. The object of the policy is contained in para. 2 of Annexure 'G'. It is clear from the opening para that it also is applicable to transfer of a civil servant to other Government Department. Moreover, neither the learned AA.-G. Nor the learned counsel for respondents Nos. 3 and 4 was in a position to refer to any deputation policy being in vogue for the transfer of a civil servant from one to the other Department. The relevant portions of the policy read as under:- "2. General terms and conditions of deputation have been laid down in Finance Department's Policy Circular Letter No, FD-SR-II-6(57)/732785, dated the 9th February, 1974 and subsequent letters noted at the **margin. According to the said policy some financial benefits are allowed to Government servants deputed to serve in other organizations in public interest. Since these incentives, coupled with other fringe benefits admissible in autonomous bodies. Offer definite advantages in terms of money, a tendency has developed among Government servants to manipulate their deputation to jobs in other organizations and secure requisitions by name for their service from the borrowing organizations.
3. Deputation has been permitted by rules to meet staff requirements of autonomous bodies in jobs for which suitable persons with requisite experience may not be easily available in the open market. The practice of asking for service of particular Government servant ends upon on several occasions in lending very junior officers in the line for deputation in preference to really suitable senior officers. It also amounts to vesting the borrowing organizations with the authority of judging suitability or otherwise of Government employees for job with them and placing premium on Government servant's manipulations to secure deputation jobs. This practice leaves little room for objective assessm ent of job requirements and personnel placement in real public interest.
4. It has been decided by Government that in order to secure selection of really suitable officers for deputation to autonomous/semi-autonomous bodies all proposals for lending services of Government servants on deputation shall henceforth require prior approval of appropriate Departmental Promotion Boards/Committees set up under S&GAD's Notification No, SOR111-6-3/78, dated 12th November, 1974 as subsequently modified, vide Notifications of even numbers, dated 18th March, 1975 and 23rd August, 1976.
5. In partial modification of the previous instructions on the subject the following procedure is hereby prescribed:-
(i) Requests for obtaining the services of civil servants, on deputation, shall be made by the borrowing agencies to the appointing authorities. Requisition for the services of a particular officer by name should not be made by the borrowing organization nor should it be entered by the appointing authority;
(ii) The sanction for lending the services of a civil servant, on deputation shall be granted by the appointing authority after clearance by the relevant Promotion/Selection Board or. Committee. The Promotion/Selection Board or Committee shell consider the panel of names of senior most officers proposed for its consideration by the appointing authority and would normally approve the name of senior most civil servant provided it may approve the name of a junior officer under the exceptional circumstances given below:-
(a) Where the post in the borrowing organization requires special qualifications which are not possessed by the senior officers; and
(b) Where the senior officer declines to proceed on deputation to the borrowing organization."
' It is clear from the above portion that the requisition is not to be made by name; secondly, panel of senior most civil servants is to be provided; and thirdly, recommendation by Promotion/Selection Board or Committee. The junior can be recommended only in following exceptional circumstances--
(i) special qualifications which are not possessed by the Senior Officers; and
(ii) where the Senior Officer declined to proceed on deputation.
' The object with which this policy was framed is laudable and necessary to keep the infra- structure of the services in good order and obviate nepotism and favouritism. The following observations of the Hon'ble Supreme Court in the case of Walayat Ali Mir (supra) are as under:-- "5-A.From these and other provisions of the Regulations. It seems clear that a service structure has been created with grades and groups and proper Regulation has been framed to deal with cases for appointment, promotion. Retirement and dismissal. All these provisions have been made to ensure security of service to the employees. It also gives power and discretion to the authorities to appoint and promote proper and suitable persons who may satisfy requisite qualifications as tested by the relevant Boards which after due consideration determines the eligibility and fitness."
' In this behalf, reference can also be made to para. 13 of the judgment of the AJ&K High Court in the case of Ali Hussain Bokhari and 39 others (supra). The same reads as under:-- "13. Bef re parting with the case, it may be placed on record that in good old days, civil servants used to be appointed, posted or transferred in e public interest or in .The interest of the State. The level has come down to the interest of individuals now. The institutions must not be handed over to people not meant and trained for them, however, capable or indispensable they may be.
Graveyard is full of capable and indispensable people. Adherence to rules makes the institutions, which must be taken care of. Even a slightest departure from the rules, gradually leads to complete departure and ultimately lawlessness. If this practice is not curbed by a democratic Government, the bureaucracy will lead them to a point of no return."
13. Now coming to the case in hand. It is not case of either of the respondents that this exercise was undertaken and the names of respondents were recommended by C&W Department or approved by LG&RD Department keeping in view this policy. This is beside the point that D.G., Local Government wrote as back as 23-11-1993 that no vacancy of XEN exists in his Department. The exercise for picking up suitable senior officers having been not undertaking, therefore, it is clear /hat the requisition was made by the Principal Advisor to C.M. Punjab at the behest and for the benefit of respondents Nos. 3 and 4. This clearly set at naught the policy. The Hon'ble Supreme Court in the case of Walayat All Mir (supra) has taken exception to such orders of the Appointing Authorities in utter disregard of the Rules, regulations and recommendations of the Board. The learned counsel for the petitioners has rightly referred to recent judgment of the Hon'ble Supreme Court in the case of Abdul Rashid (supra). The relevant portion reads as under:-- "4. It is not the case of petitioner that the respondent was not eligible for promotion to the post of Director-General. That being so, was not open to the Government to induct any officer from outside by means of transfer without first considering the respondent for promotion to the post in question which admittedly was not done."
14. The last objection was that the Secretary, C&W Department has not been impleaded as a party, therefore, the writ petition is not competent. The orders challenged are that of respondent No, 1 and in favour of respondents Nos. 3 and 4, therefore, all the necessary parties are on record. Therefore, the objection is without any merit.
15. The term 'deputation' has not been defined either in the Act of 1974 or Rules framed thereunder.
It is clear from its incidents that it is a specie of transfer. In other words, it is a transfer outside his service, cadre or the functional unit. Such transfer is to be made in accordance with the Service Rules of the borrowing department in view Rule 11 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 and. In case of violation the order shall be illegal as is clear from the cases of Abdul Rashid and Muhammad Karim (supra). Now from whatever angle we look at the facts of the case in hand it is evident that the appointment of respondents Nos. 3 and 4 as XEN in the LG&RD Department was void ab initio.
16. It is clear from the object of the deputation policy, as reproduced above, that the Government was fully alive to the situation and wanted to curb the tendency of the civil servant to get posting and other benefits which he does not deserve and that too over and above the heads of others, who are qualified to occupy such posts. Therefore, respondents Nos. 3 and 4 are directed to restore all the benefits, allowances etc. Drawn by them as XEN in the LG&RD Department over and above the benefits and allowances etc. Which they were entitled to receive as SDOs in the C&W Department while the 'Accountant-General, Punjab, is directed to recover all the amounts at the most by 31-12-1995. This is absolutely essential to curb this dangerous tendency to overshoot their seniors with the political power.
17. The upshot of the above discussion is that this writ petition is accepted with costs of Rs,5,000, which shall be payable by respondents Nos. 3 and 4. The result is that it is held that respondents Nos. 3 and 4 are holding posts of XEN in the LG&RD Department without lawful authority and they are restrained from acting as such and to restore the benefits as directed above. The posts of XENs held by them are declared vacant for filling in accordance with law and rules.