' Asghar Ali Khan filed this petition on 11-4-1994 against the respondents with the prayer for his promotion to the newly created post of Jamadar on account of his being senior most. It was further prayed that respondent No,5, may not unlawfully be accommodated to the post of Jamadar by relaxing his age in violation of rules. It was also prayed that during the pendency of the petition he may not be appointed as Jamadar with effect from 1-7-1994.
2. On 12-4-1994 report and parawise comments were called for within a period of two weeks and the case be fixed immediately on receipt of the comments. The comments were submitted by respondent No,l. In reply to Ground-C, it was stated that the petition is based on mere conjectures because the post is still vacant. Meanwhile Bashir Ullah respondent No,5 filed Writ Petition No,3639 of 1994 in this Court on 2-8-1994 against D.C. Etc. Both writ petitions were ordered on 24-8-1994 to be heard together. Report and parawise comments were also called from respondent No,l. Both the cases were fixed together on many dates. However, on 15-11-1995 Bashir Ullah petitioner in Writ Petition No,3639-S of 1994 has withdrawn his writ petition after joining B.M.P. On 4-12-1994. During the pendency of both writ petitions respondent No,5 was appointed as Jamadar w,e,f, 1-7-1994 for Tumman Lund tribal area D.G. Khan on temporary basis. Because of this change petitioner filed Civil Miscellaneous No,155 of 1995 seeking permission to amend the writ petition. The petition was allowed and amended writ petition thereafter came up for hearing before this Court on 26-1-1995.
The writ petition was admitted for regular hearing on 14-10-1996.
2. Petitioner is aggrieved against the direct appointment of respondent No,5 as Jamadar for Tumman Lund Tribe Area of D.G. Khan mainly on the ground that his right of promotion as Jamadar has been infringed. He being senior most dafadar and fit for the post was entitled to it after its creation. He also claimed that the post was created for Tumman Lund and not for respondent No,5 as presumed by the Home Secretary.
3. Learned counsel for the petitioner submits that a post was created under the order of the then President of Pakistan on an application submitted by respondent No,5. The order of the President does not show that the post was created for respondent No,5. It was a post for the Tumman Lund.
And not for respondent No,5 himself. He has referred to the note of the Home. Secretary under the order (Annexure-A) made in favour of respondent No,5 which reads as under: "It is intimated that in compliance of President's directive received through your letter under reference, a post of Jamadar in B.P.S. 14 B.M.P. For Tumman Lund Tribal Area D.G. Khan has been created to accommodate Mr. Bashir Ullah son of Dost Muhammad Khan caste Hamdani Lund resident of B.M.P. Past Hamadani Tribal Area D.G. Khan and his upper age for the period of 2 years and 6 months has been relaxed by the competent Authority. Copy enclosed to meet the purpose."
' The Home Secretary took the impression that the post has been created for respondent No,5, whereas the fact remains that a post of Jamadar for Tumman Lund was desired to be created by the President and the appointment of respondent No,5 has not been made in accordance with law or the order of the President. He further submitted that no direct appointment without advertising the post of Jamadar could be filled in through back door. In a clandestine manner respondent No,5 manoevered the appointment. He has also referred Writ Petition No,3639 of 1994 filed by respondent No,5 against the Deputy Commissioner D.G. Khan, in this connection.
4. Learned counsel for respondent No,5 as well as the learned. A.A.-G. Opposed the writ petition.
Respondent No,5 submits that this Court has no jurisdiction to adjudicate upon the matter as it relates to the terms and conditions of service and the petitioner if aggrieved may seek remedy from the Punjab Service Tribunal. He also submits that the post was created for respondent No,5.
Bashir Ullah under the orders of the then President, therefore, his appointment made w,e,f, 1-7-1994 and his joining B.M.P. On 4-12-1994 vide report Roznamcha No,15 attached as Annexure 'C' is in accordance with law.
5. I have heard the learned counsel for the parties and perused the record with their assistance.
6. It has been pointed out at the very outset by the learned counsel for petitioner that respondent No,5 also filed Writ Petition No,3639-S of 1994 in this Court. The comments were called for. While replying the comments respondents No,1. Deputy Commissioner, D.G. Khan in the said petition stated in reply to paras. 4, 5 and 6 as under: Para. 4.
' That the Commissioner/respondent No,2 through his memo., dated 13-2-1994 recapitulating the factual back-ground requested that a new post of Jamadar in B.P.S. 14 be created separately in Tumman Lund. He also recommended the applicant to be posted as against the said post. Copy of the memo. Of the Commissioner is attached as Annexure D. The Government of Punjab vide its order, dated 31-3-1994 accorded sanction to the new post of Jamadar and also allocated the necessary funds therefor. The Commissioner of D.G. Khan and the Deputy Commissioner with reference to his letter, dated 16-11994 was required to appoint the petitioner as against the post as desired by the Government in the above order. Copy of the order also carrying endorsement of the Commissioner is attached as Annexure E.
Para. 5.
That unfortunately the Deputy Commissioner/respondent No,1, appears to have taken some aversion to the petitioner and seems to be seeking to push up some other incumbent and he started deferring the appointment of the petitioner taking refuge under the ban of the Provincial Government on postings. The Political Assistant and the office of the Deputy Commissioner reported that the instant case was not covered by the ban as it.
Comments by D.C.
' However, the President confined his order to mere creation of a post of Jamadar for Tumman Lund. The President never passed an order for appointment of the petitioner against tkat post.
Unfortunately due to the fact that the application on which the President passed order for creation of one post of Jamadar for Lund was of the petitioner Bashir Ullah, therefore, due to some misunderstanding the Political Assistant, D.G. Khan thought as if the post was being created to appoint him."
' At the end, replying the same para., he stated:--- "This all happened due to the fact that the order of the President was passed on petitioner's application. The misunderstanding was carried through upto Home Department whereas the President's order never said a word about appointment. It was purely for creation of a post of Jamadari for Lund Tumman.
' The post has been created and it has to be filled according to law/rules like any other post. The post can only be advertised once the ban is lifted/relaxed. Proceeded on the directive of the President and the Provincial Government had already sanctioned the post and allocated necessary funds and even directed the appointment of the petitioner against the said post.
However, the Deputy Commissioner instead through vide his order, dated 14-7-1994 has once again written to the Provincial Government requiring relation of ban as a special case for appointment of the petitioner as Jamadar. Border Military Police. Copy of the letter is attached as Annexure F.Para. 6.That the directive of the President of Pakistan was executed by the Provincial Government and the Commissioner had also sought implementation of such order. The post of Jamadar created for Lund tribe and the direction to appoint the petitioner with effect from 1-7-1994 being illegally obstructed by the ' Para. 6.
' Para. 6.That the directive of the President of Pakistan was executed by the Provincial Government and the Commissioner had also sought implementation of such order. The post of Jamadar created for Lund tribe and the direction to appoint the petitioner with effect from 1-7-1994 being illegally obstructed by the Deputy Commissioner/Respondent No,1 the funds had also been allocated for the said post and already a month has gone but the post remains vacant and the petitioner has been clamoring all throughout but his appointment is being deferred on the pretext of ban which does not apply to the petitioner's case.
' There is no direction to appoint the petitioner with effect from 1-7-1994. In fact the petitioner is referring to sanction order of the post which says that the post would stand created with effect from 1-7-1994. Since creation of post does not in any way entail appointment of petitioner so once the ban is lifted the post would be filled up according to law.
After going through the comments filed by the Deputy Commissioner, D.G. Khan, there is hardly any ground to believe the contention of respondent No,5, that the post was created for him and he stood appointed with effect from 1-7-1994 on creation of the post. The stand of the Deputy Commissioner, D.G. Khan and perusal of the order of the President:--- "Commissioner, D.G. Khan may please initiate Jamadari separate for Lund Tumman." reveal it clearly that only post was created. The Home Secretary has erroneously appended a note after creation of post under erroneous assumption that the post was created under the directive of the President for appointment of respondent No,5 in the present writ petition. There was no such direction by the President for appointment of Bashir Ullah or for relaxation of his age of 2 years 6 months. The post was to be filled in normal course in accordance with the Punjab Civil Servants (Appointment and Promotion) Rules, 1974. However, the petitioner came to know about the joining of respondent No,5, as Jamadar at B.M.P. Line Saddar, D.G. Khan and submitted Civil Miscellaneous No,1854 of 1994 in this Court. The comments on the said application were also called for.
Commissioner D.G. Khan has not submitted the comments on the said application so far. Ch. Muhammad Azhar, the then Deputy Commissioner, D.G. Khan failed to submit the comments on the application of the petitioner. While he was under transfer all of a sudden he passed the order of appointment of respondent No,5 during pendency of the writ petition contrary to the comments filed by him in this writ petition as well as in Writ Petition No,3639 of 1994 filed by Bashir Ullah respondent against D.C. Etc. To the effect that the post shall be filled in accordance with law after due advertisement. The appointment of respondent No,5 in derogation of written comments submitted in this Court by respondent No,1 is wholly without jurisdiction.
6. The post of Jamadar was created for Tumman Lund Tribe of D.G. Khan which was to be filled in accordance with the procedure laid down in the Punjab Civil Servants (Appointment and Promotion) Service Rules. Respondent No,5 has come directly as Jamadar without having any extraordinary qualification for the said post. The petitioner is a Chief of Tumman Lund and was entitled to the post on account of seniority-cum-fitness. The order of his appointment (respondent No,5) in view of clear cut denial in the comments by the Deputy Commissioner, has been made in clandestine manner contrary the established principles of law. As such the impugned order of appointment of respondent No,5 is hereby declared wholly without jurisdiction and nullity in the eye of law.
7. The question of jurisdiction raised by the learned counsel for respondent No,5 is not called for the present case. It is a case in which interpretation of order creating a post of Jamadari in Tumman Lund under directive of the President is involved. The President has only created a seat. He has never passed an order for the appointment of respondent No,5 as Jamadar Tumman Lund. The question of terms and conditions of service is not involved is of no consequence and is repelled.
8. The post of Jamadar in Tumman Lund shall be filled in by the respondent No,3 in accordance to Punjab Civil Servants. Appointment and Promotion Rules, 1974, keeping in view the principle of seniority-cum-fitness from the force of Tuman Lund Tribe. The petition is accordingly allowed with costs.