FAZAL KARIM, J.---The petitioner was appointed as Deputy Chief (Legal) in (B-19) in the Corporate Law Authority on 4th May, 1989. In 1991 the sixth respondent Mr. Abdul Rehman Qureshi, who was at that time serving as Joint Registrar, was appointed as Chief (Legal Affairs) in (B-20). According to the rules, in order to be appointed as Chief (Legal Affairs), a Deputy Chief (B-19) had to have five years' service for promotion as Chief (Legal Affairs). As the petitioner or for that matter none of the other serving Deputy Chiefs (Legal) in (B-19) had at his credit five years' service, the relevant rule was amended in the purported exercise of the powers given by rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, thus paving the way for the appointment of the sixth respondent as Chief (Legal Affairs).
2. The contention, inter alia, is that the said amendment was inconsistent with section 9 of the Civil Servants Act, 1973 as also rule 6-B of the Civil Servants (Appointment, Promotion, and Transfer)
Rules, 1973. The petitioner contended that in case of conflict between Rule 8-B and the amendment made in exercise of the powers under rule 3(2) of the said Act, rule 8-B will prevail and that entitled the petitioner to be appointed to the post of Chief(Legal Affairs) on acting charge basis.
3. Leave to appeal is granted to consider these contentions.
1998 PLC (C.S.) 1041 [Supreme Court of Pakistan] Present: Ajmal Mian, Saiduzzaman Siddiqui and Zia Mahmood Mirza, JJ MUHAMMAD ZARIN and another versus PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, SHAHPUR and others Civil Petitions for Leave to Appeal Nos. 644 and 645 of 1995, decided on 16th October, 1996.
(On appeal from the judgment dated 24-10-1995 passed by the N.W.F.P. Service Tribunal, Peshawar, in Appeals Nos. 385 of 1995 and 387 of 1995).
North-West Frontier Province Civil Servants Act (XVIII of 1973)--- ----Ss. 5 & 6---Constitution of Pakistan (1973), Art. 212(3)---Termination of service---Employment of petitioners in violation of recruitment rules---Services of petitioners were terminated during probationary period and respondents were employed in place of petitioners in violation of recruitment rules---Service Tribunal dismissed petitioners' appeal against termination of their services---Validity---Supreme Court refused to grant leave to consider whether Service Tribunal had rightly declined relief of re-instatement to petitioners as adrdittedly they were employed in violation of recruitment rules and their services were terminated while on probation, thus, no exception could be taken to their terminations---Leave to appeal was, however, granted to consider whether Service Tribunal was bound to examine legality of appointment of respondents in view of Supreme Court's judgment in Munawar Khan's case (1993 SCM R 1287) and the relevant rules of recruitment. [p. 1043] A Munawar Khan v. Niaz Muhammad and 7 others 1993 SCM R 1287 rel.
Qazi M. Anwar, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Adyocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 16th October, 1996.
' AJMAL MIAN, J.---By this common order we intend to dispose of the above two petitions for leave to appeal, which are directed against the judgments dated 24-10-1995 passed by the learned N.- W.F.P. Service Tribunal (hereinafter referred to as the Tribunal) in Appeal No,387 of 1995 filed by petitioner Muhammad Zarin in Civil Petition for Leave to Appeal No,644 of 1995 and Appeal No,385 of 1995 filed by petitioner Bakht Baidar in Civil Petition for Leave to Appeal No,645 of 1995 against the termination of their services while they were on probation. The petitioners have, therefore, filed the present petitions for leave to appeal.
2. The brief facts are that petitioner Muhammad Zarin was appointed on or about 24-1-1995 as a Laboratory Attendant whereas petitioner Bakht Baidar was appointed on 1-2-1995 as Naib-Qasid in the Government Higher Secondary School, Shahpur, both in Grade-1. It is averred that while they were on probation their services were terminated and in their place the private respondents at the behest of a Provincial Minister were taken in service. The petitioners thereupon filed the above appeals before the Tribunal. In the memo of appeals the petitioners had not only prayed for setting aside the above termination orders of their services but had also prayed for setting aside the appointments of the private respondents on the ground of violation of recruitment rules. However, the Tribunal dismissed both the appeals on the basis othe reasons recorded in Appeal No,385 of 1995.
3. In support of the above two petitions Mr. Qazi M. Anwar, learned Senior Advocate Supreme Court, appearing for the petitioners has submitted that no doubt the petitioners were also appointed directly without any advertisement as recruitment rules and that their services were terminated while they were on probation, but the Tribunal was obliged to examine the question whether the private respondents could have been allowed to continue in service, though admittedly they were recruited in violation of the recruitment rules and contrary to the law enunciated by this Court in the case of Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 128'7) in which, inter alia, it has been held that direct appointment without advertisement is in violation of the recruitment rules and, therefore, is not permissible.
4. We are not inclined to grant leave to consider the question, whether the Tribunal has rightly declined the relief of reinstatement to the petitioners admittedly they were employed in violation of the recruitment rules and their services were terminated while on probation and hence no exception can be taken. However, we are inclined to grant leave to consider the question, whether the Tribunal was found to examine the legality of the appointments of the respondents in view of the above judgment of this Court and the relevant recruitment rules.
' Leave is accordingly granted.