IHSAN-UL-HAQ CHAUDHRY, J. It is proposed to decide Writ Petition Nos. 13002/98, 13135/98 and 12616/98 by this common judgment as legal and factual controversy is the same.
2. The relevant facts for the decision of these writ petitions ate that the petitioners in all the writ petitions have challenged the appointment order dated 14.11.1992 of Captain (Rtd.) Muhammad Naseem Hijazi as Deputy Director Administration in Gujranwala Development Authority, a post in BS-18. It was alleged that the said officer was thoroughly corrupt with reference to 10 allegations as listed. It was added that he was capable of doing anything and in this behalf it was referred to order of his promotion issued by himself. It was added that the Director General when came to know of this order, proceeded to withdraw the same. The Writ Petitions Nos. 13002/98 and 12616/1998 were admitted to regular hearing while the other one was treated as notice case with the concurrence of the parties. The respondents have not cared to file written statement, however, they are represented.
3. The learned counsel for the petitioner argued that respondent No. 3 being a retired Captain as per policy of the Government could only be appointed against a post in BS-17. In this behalf she has referred to Annexure-A/4, a policy letter dated 16.7.1980 issued by the Finance Department, Government of the Punjab and to Estacode Page 905. It was argued that the appointment was made on contract basis for three years. However, he was made Director Administration on officiating basis and was promoted in that position on regular basis in relaxation of Rules and Regulations vide notification dated 5th of September, 1995. However, the Director General rescinded this notification vide office order dated 21.1.1996 as having been issued without his explicit permission, it was argued that the appointment was illegal and void abinitio, therefore, all subsequent orders would fall with the basic order of appointment. It was- added that according to the Appointment and Conditions of Service Regulations, 1991 (hereinafter to be referred as Regulations 1991) the Director General was the competent authority to make the appointment and Chief Minister or Minister were not competent to make his appointment. It was added that contract was for BS-18 but he was given BS-19 illegally. It was added that in such circumstances the writ of quo warranto could be issued at the instance of anyone. The learned counsel in this behalf referred to the judgment reported as Al-Jehad Trust through Raeesul Mujahideen Habib-ul- Wahabb-ul- Khairi and others v. Federation of Pakistan and others (PLD 1996 S.C. 324), Ejaz Hussain v. Abdul Qayyum (1996 PL,C (C.S.) 622) and Tariq Javed v. Director General, F.I.A., Islamabad and 3 others (1997 PLC (C.S.) 273). It was argued that there is a long list of charges of corruption including issuance of Cheque for Rs.5,05,000/- against him. It was added that the defalcation was proved by the document D-l. It was added that it was not a case for relaxation. In the end it was submitted that although the Anti-Corruption Establishment was directed to hold an inquiry against respondent No. 3 on the charges of corruption yet it has failed to do the needful. It was added that although the charges were tabulated yet the same were not dealt in the report by the Deputy Director Anti-Corruption Establishment.
4. Mr. Shahzad Shaukat, Advocate, in W.P. No. 13135/98, argued that inquiry into the allegations of corruption against the respondent No. 3 should have been conducted by a Director and in any case not by an officer who was lower in rank to respondent No. 3. In this behalf he has referred to Rule 8 of the Anti- Corruption Establishment Rules, 1985.
5. Mr. Altaf-ur-Rehman, Advocate, who appeared for respondent No. 2, argued that G.D.A. Was established under the Punjab Development of Cities Act No. XIX of 1976 (hereinafter to be referred as Act of 1976). The application of this Act and establishment of an authority as well as composition is given in Section 4 while delegation of power to the Director General js provided under Section 8 of the Act. It was added that appointments of Officers, Advisors, Consultants and Employees were to be made by the authority as per Section 9 of the Act, 1976 while Regulation No. 17 authorised appointments on contract basis and is dealt relaxation under Regulation No. 24. It was added that respondent No. 3 was first promoted then the order was cancelled and he was again promoted on 21st of February, 1998. It was maintained that he was very upright, honest and efficient officer and for that reason he was given also powers of Director Finance. While Ch. Naseer Ahmad- Bhutta, Advocate for respondent No. 3 argued that he was appointed in relaxation of Rules vide order dated 14.11.1992 for three years and he was otherwise qualified to be appointed. In this behalf he has referred to Serial No. 18 of the Schedule to Regulations, 1991. It was added that thereafter vide order dated 4.4.1993 he was absorbed in the GDA on permanent basis. This absorption has no nexus with the previous appointment, therefore, the same was irrelevant. It was argued that focal point was whether the power of that relaxation has been properly used. It was added that rules were subservient to the main statute. In this behalf he has referred to the judgments reported as The 'Chairman, Railway Board, Lahore and others v. M/s. M. Wahabuddin and Sons (PLD 1990 SC 1034), Hinjiner Salt Chemicals (Pak) Ltd. v. Union Council Charo, etc. (1982 PSC 340) and Alex Beets v. M.A.
Urmese and another (AIR 1970 Kerala 312). It was argued that in case the appointment was made in accordance with the rules then it was bound to cause delay and the authority has to pay higher price, therefore, these were the reasons for making appointment by initial recruitment. It was added that since the Anti-Corruption Department has inquired into the allegations, therefore, this Court may take the same into consideration.
6. Rana Muhammad Arif, Addl. Advocate General argued that as per provisions of Estacode a retired caption could be appointed against a post in BS-17. It was added that the Government has reserved 10% quota for the Army Personnel but they are nominated by the GHQ. The respondent No. 3 was not nominated by the Army Authorities, therefore, his appointment on contract basis after retirement from the Army would be an appointment not against Army quota, therefore, the same could not be made without inviting applications through publication of notice. In this behalf he had relied on the judgments of Hon'ble Supreme Court reported as Abdul Jabbar Memon, etc. (1996 SCMR 1349), Muunwar Khan v. Niaz Muhammad (1993 SCMR 1287), Abdur Rashid v. Riazuddin (1995 SCMR 999) and Mushtaq Ahmad Mohal v. The Hon'ble Lahore High Court, Lahore (1997 SCMR 1043).
7. It was argued that the civil servants appointed on contract basis are not civil servants on regular basis, therefore, they are not entitled to promotion and any remuneration beyond the terms and conditions of contract. It was argued that the appointment is liable to be declared void for reason also because according to service regulations the appointment of the post of Deputy Director could be made either by transfer or. By promotion. It was argued that the appointment being void, therefore, the moment, this order was set aside, all subsequent orders would automatically fall. In this behalf learned Addl. A.G. Referred to Muhammad Shafi v. Mushtaq Ahmad (1996 SCMR 856) and Muhammad Raz-ud-Din v. Government of N.W.F.P. (PLD 1997 SC 397).
8. The learned Addl. A.G. Thereafter argued that the appointment could . Be made in relaxation of the procedure which includes qualification but not of the law or rules. The respondent No. 3 having been appointed merely on contract basis, there was no question of his permanent absorption in the Authority. It was added that in any case at this stage regulations were not relaxed. It was argued that the regulations clearly provided for assigning of reasons in writing. This having not been done in this case, therefore, the order was illegal for this reason, also. He in this behalf referred to Islamic Republic of Pakistan v. Israrul Haq (PLD 1981 SC 531), Muhammad Iqbal Khokhar v.
Government of Punjab (PLD 1991 SC 35), Major (Retd.) Raja Qurban Hussain v. Secretary Services, Government of Punjab (1992 PLC (C.S.) 76) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).
9. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, provisions of law, regulations as well as precedents.
The admitted position is that respondent No. 3 retired from Army in the year 1991. He was appointed on 14.11.1992 as Deputy Director on contract basis in BS-18. The Appointment Authority' as per Regulation No.2(a) is relation to the post means person authorised under Regulation No. 6, which in terms referred to Column No. 4 of the Schedule. The Deputy Director appears at Serial No. 18 of the Schedule and according to Column No. 4 the Appointment Authority was Director General, therefore, the powers could not be exercised by any one else. The appointment in the present case was admittedly made by the Chief Minister, therefore, without jurisdiction and authority while as per Regulation No. 3(1) the appointments are to be made either by promotion or by transfer or by initial recruitment as per procedure laid down in Part-II. This was not complied with in the case of respondent No. 3. This illegal act deprived the persons who would have been appointed by transfer if not by promotion.
10. Now coming to the relaxation, the same dealt by Regulation No. 24 which reads as under:- "24. The Chairman may in individual cases of hardship or where the public interest so requires, and for reasons to be recorded in writing, relax the provision of any of these regulations except Regulation 14."
It is clear that such appointment has to be either in case of 'hardship; or 'requirement of public interest'. The order of relaxation should contain reasons in writing. The present is neither case of 'hardship' or requirement of public interest and on top of it the order the then Chief Minister did not contain any reason, therefore, the order is no order in the eye of law. This is besides the point that the authority competent to allow relaxation was the Chairman i.e. Minister for Local Government and Rural Development and not Chief Minister.
11. The Regulation No. 24 is para materia to Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. In this behalf reference can be made to Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokkar (PLD 1992 SC 184) wherein the purpose and scope of the said rule was dealt with. The relevant portion of the judgment read as under:- "6. As regards the residual remedial power of the Governor contained in Section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed under the limit. It is not to be so exercised so as to infringe, impair or curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of Article 4 and Article 240 of the Constitution.
The argument that the exercise of this power can ride rough over the statutory rights of others would amount to negation of rule of law, going beyond the Constitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as such benefits as he wants to and considers just, and fair but not at the costs of others, not even at the slightest cost of the statutory rights already granted to the beneficiary. This is a power of redressal, of providing a relief and not of impairing statutory rights of anyone."
12. The admitted position is that the appointment of respondent No. 3 was made on contract basis.
The same is not the normal process of making appointment as is clear from Regulation No. 3(1) of the Service Regulations. The condition precedent for making such appointment is that if it is so required by the interest of the Authority. The respondent No. 3 had neither special education nor experience nor anywhere it was recorded that this appointment was made in the interest of the Authority. The other requirement is that it should be made against a specified post and that such appointment shall require the prior approval of the Chairman. This condition was also lacking.
Therefore, the appointment on contract basis was void abinitio, illegal and not made by a competent authority. It may be mentioned here that the manner respondent No. 3 was appointed neither the then Chief Minister nor the Chairman nor the Director General were sure as to what they were relaxing. It is apparent from the order of the Chief Minister that he made appointment in relaxation of rules whereas for appointment on contract basis there could be no relaxation.
Learned Addl. A.G. Has rightly referred to the judgment of Hon'ble Supreme Court in Al-Jehad Trust (supra).
13. Now coming to the arguments of the learned counsel for respondent No. 3 that the appointment as Deputy Director on contract basis in BS-18 came to an end when his appointment on 4.4.1993 was made. The very word 'absorption' pre-suppose the existence of respondent No. 3 in the Authority. Moreover, if it is treated as fresh order then there was no relaxation and that to was not passed by competent authority. If it is treated as promotion in continuation of appointment order dated 14.11.1992 then he being not a regular and permanent employee was not entitled to any promotion. In other words he was not entitled to any benefit beyond the terms and conditions of contract. The second order if taken as fresh and an independent order of appointment then it was equally illegal, void and without authority because this time neither the requirements for initial recruitment were complied with as per Part-II read with Regulation No. 3(1) of the Appointment Regulations nor any relaxation was ordered by any authority.
14. The argument that the appointment was made by initial recruitment because if it had been made in accordance with rules, it might have taken some time to get somebody transferred and if made by promotion, it would have costed more to the G.D. A. It is interesting to note here that the relaxation was only for contract basis without any reference to what was relaxed. There is merit in the arguments of the learned Addl. A.G. That it is the procedure including qualification which could be relaxed that to by the competent authority and not the law or the rules itself. In the present case the appointment could not be made to the post of Deputy Director by initial recruitment, therefore, there was no question of relaxing the rules. The action amounted to over riding the rules. This is not permissible. The purpose of all Laws, Rules and Regulations is to ensure appointments on merit, equal opportunity and protection. The Hon'ble Supreme Court has further extended this rule with reference to fundamental rights. In this behalf reference can be made to Munawar Khan (supra).
The relevant portion of the judgment reads as under: "6. What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisement, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is except that in future all appointments shall be made after due publicity in the area from which the recruitments had to take place. This will, however, not apply to short- term leave vacancies or to contingent employment."
The Courts annul such back door appointments for the reasons the same deprive other citizen of equal rights to compete for the post. The order are passed at the behest of the Authority, person having no jurisdiction. The Law, Enactment, Rules and Regulations framed to ensure appointments on merits are ignored.
15. The appointment of the petitioner whether on contract basis through order dated 14.11.1992 or absorption vide order dated 4.4.1993 was illegal, void and made by authority not competent to do so, therefore, all subsequent orders are also illegal and no legal consequence. In this behalf reference can be made to Yousuf Ali v. Muhammad Afzal Zia (PLD 1958 SC 104), Crescent Sugar Mills and Distillery Ltd. v. Central Board of Revenue, Islamabad (PLD 1982 Lahore) and Messrs Munkoc Corporation v. Province of Punjab (1990 CLC 1791).
5. The upshot of this discussion is that this writ petition is accepted with costs. The result is that the orders of appointment, absorption and promotion of respondent No. 3 in the Gujranwala Development Authority are all declared void, illegal and without authority, therefore, set aside.