The petitioner seeks a declaration that merit list and posting orders of respondents, dated 12-2- 1997 are illegal, ultra vires of the law and the rules on the subject and without lawful authority and further direction 'to the respondents to issue appointment letter on the basis of notification, dated 28-8-2993 as the petitioner is son of a Government Servant who died during service.
2. The back ground of the case is that the petitioner's father Syed Muhammad Taqi Shah was senior teacher in Government High School, Muzaffargarh who died during service on 6-5-1992, the petitioner is his son along with other legal heirs. The petitioner did his matriculation examination in the year 1988 in First Division obtaining 554/850 marks. Thereafter, he did his F.Sc. Pre-Engineering Group in Second Division by obtaining 558/1100 marks. He also qualified Primary Teacher Certificate examination by securing Ist Division. The respondents advertised vacancies on open merits and the petitioner submitted two applications for his appointment as P.T.C. Teacher bearing No, -617 dated 9-1-1997 and bearing No, 1363, dated 12-1-1997 one on open merit and the other on the basis of his right under the Notification, dated 28-8-1993 of the Government of Punjab being a child of a Government Servant who died while in service.
3. The grievance of the petitioner is that the respondents selection committee did not consider his application in the light of the Government Notification No,SOR-III-2-42/92, dated 28-8-1993 whereby an amendment was made in rules 17-A of the Punjab Civil Servants (Appointment and conditions of Service) Rules, 1974 providing them giving 10 additional marks. The petitioner made an appeal to the respondent No,3 against his non-consideration but he failed to decide it. The learned counsel for the petitioner has referred to Writ Petition No, 6507 of 1997 titled as Abdul Ghafoor v. The Chairman, Board of Intermediate and Secondary Education, Dera Ghazi Khan and 9 others which was allowed by this Court for the same reason.
4. A notice was given to the respondents and the comments have been filed. The appointment of a candidate under order of the High Court passed in Writ Petition No, 6507 of 1997, dated 4-2-1998 has been admitted. Respondent No, 5 has put forward the plea in his comments that all the procees and procedure for the appointments were made according to the Government Policy issued by the Government of Punjab and the death certificate of the father of the petitioner was missing at the time of his interview. The same has been shown and produced before this Court alongwith comments as Annexure '3' duly signed by the Headmaster, Government High School, Muzaffargarh and District Eduction Officer, Muzaffargarh. It is also stated by the respondent that had the death certificate been available at that time, the petitioner would have got the benefit of the Notification, dated 28-8-1993.
5. I have heard the valuable arguments on both sides.
6. The relevant Notifications are dated 28-8-1993 and dated 18-2-1997 which are reproduced as under:--- "Government of the Punjab Services General Administration and Information Department."
NOTIFICATION The 28th August, 1993.
'No, SOR-III-2-42/92.--In exercise of the powers conferred on him under section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974), the Governor of the Punjab is pleased to direct that in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the Governor of the Punjab is pleased to direct that in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the following further amendment shall be made, namely:-- AMENDMENT For rule 17-A the following shall be substituted:-- 17-A Notwithstanding anything contained in any rule to do contrary whenever a Civil Servant dies while in service or i, declared invalidated/incapacitated for further service, one of his unemployed children, may be employed by the Appointing Authority against a post to he filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child may be given then (10) additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test examination and/or interview or posts in BS-6 and above: Provided further that one child of a Government Servant who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government Servant was working without observance of formalities prescribed under the rules/procedure, provided such child is otherwise eligible for the post." By Order of Governor of the Punjab. Jiwan Khan Addition Chief Secretary." and the notification dated 18 2-1997 reads as under:--- "No, SOR. 111.2-42/92 Government of the Punjab Service & General Administration Department.
Dated Lahore, The 18th February, 1997.
1. All Administrative Secretaries to Government of the Punjab.
2. All Heads of Attached Departments in the Punjab.
3. All Heads of the Autonomous/Semi-Autonomous Bodies in the Punjab.
4. All Regional Heads of Department in the Punjab.
5. All Commissioners of Divisions in the Punjab.
6. All Deputy Commissioners in the Punjab.
7. The Registrar, Lahore High Court, Lahore.
8. The Secretary Provincial Assembly, Punjab.
9. The Inspector-General, Police, Punjab.
Subject:--Benefit of giving job to one child of a Government Servant who died while in service or is declared 'Invalidated/incapacitated for further service.
Sir, I am directed to refer to say that under the provision of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, whenever a Government servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government servant was serving, without observance of formalities prescribed under rules procedure provided such child is otherwise eligible for the Post.
(2) A question has arisen whether this benefit under the statutory provision of rules can be availed of in case of ban on recruitment has been imposed by Government. The case was examined in consultation with the Law and Parliamentary Affairs Department who have advised that ban on recruitment is not applicable against statutory provision of rules referred to above, nor the right of the child of a deceased Government servant under Rule 17-A of the rules ibid would be abridged by such order.
(3) I am to request that this clarification may be brought to the notice of all appointing authorities under your administrative control for strict compliance. Your obedient servant, (Sd.) (Muhammad Daud Iqbal)
Section Officer (R. III)."
7. Admittedly father of the petitioner was a Government servant who died while in service as is clear from the in service death-certificate issued by the Senior Headmaster (Annexure 'A') Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 is a statutory rule.
A right is thus vested in the petitioner to be provided a job against posts in BS 1 to 5 in the Department in which his deceased father was serving without observance of formalities prescribed under rules or procedure provided the petitioner is otherwise eligible for the post. It is also clear from the Notification dated 18-2-1997 that even an on recruitment was not applicable against statutory provision of rules.
8. For the above reasons and also on the principle of consistency the writ merits to be allowed and the same is hereby allowed. The respondents are directed to add ten (10) additional marks in the aggregate as he is admittedly otherwise qualified in view of the Notification dated 28-8-1993 and pass the appointment order of the petitioner in view of the Notification dated 18-2-1997 from the same date when he was eligible along with other candidates for appointment. Compliance report shall be sent by the respondent through the Additional Registrar of this Court.