' Seeking the setting aside of the impugned order dated 3-10-1995, passed by the Inspector- General of Police, Punjab (Annexure J), the appellant Ahmed Ali, A.S.-I., also prayed that respondent No.2 (I.-G. Punjab) be directed to relax the condition of Intermediate Class Courses or at least age condition in his favour; that respondents Nos.1 and 2 be directed to promote him as A.S.-I. On regular basis w.e.f. 1-12-1992 and that he be also directed to be brought on list 'D' w.e.f 1-12-1972 and on list 'E' from the date on which his juniors were so relisted.
2. The background of the case is that on 15-5-1991, one Fateh Muhammad Ghauri and other Mohalladars had produced the appellant before the A.C. And D.S.P., Depalpur reporting that he was found in a compromising position with a prostitute Mst. Naila in the house owned by Wali Muhammad. A formal F.I.R. Was registered (F.I.R. No.205 of 1991) under section 18 of Ordinance VII of 1979 read with section 294, P.P.C. At Police Station Hujra. The case was investigated. On the Departmental side, the S.P., Okara, issued a show-cuase notice on 9-8-1993 and after observing other formalities, had dismissed the appellant. His appeal was dismissed but in revision before the I.-G.P., he was awarded the penalty of reduction in rank vide order, dated 7-6-1994. This punishment was then set aside by the Punjab Service Tribunal by judgment, dated 2-5-2000 in Service Appeal No.747 of 1994. In the meanwhile, many Head Constables junior to the appellant were selected for Intermediate Class Course and on successfully passing the course, were promoted as A.S.-Is. The appellant had meanwhile become overage. His application was rejected on 3-10-1995 on the ground that there was no practice for relaxing the upper age limit for promotion courses. This order was issued under the signatures of the A.I.-G., Training for the I.-G., Punjab. Hence this appeal.
3. The contention of the appellant was that once the appellant was exonerated of the criminal charge and was reinstated by the Punjab Service Tribunal while accepting his Service Appeal No,747 of 1994 on 2-5-1995, the respondents could not have refused to nominate him for the intermediate class course on the ground that he had crossed the prescribed age limit. Referring to Annexure 'O', the appellant's plea was that the officials mentioned therein had been allowed promotion relaxing the upper age limit for promotion courses.
4. Respondents Nos.1 and 2 had filed written comments/objections praying that the appeal may kindly be decided on merits. In the course of arguments on 3-12-1998, it was felt that specific reply was not filed by the respondents Nos.1 and 2 with reference to Annexure '0' wherein instances were quoted where age was relaxed by the I.-G., Punjab for upper courses prescribed for promotion. The I.-G.P. Was, therefore, directed to submit a specific reply in the above context. On 23-11-1999, the Departmental representative was further asked to produce the A.C.R. Dossier of the appellant.
5. In response to the above orders, written reply was submitted on behalf of the I.-G., Punjab stating that the request of the appellant for relaxing the upper age-limit was rejected because of his chequered service record and relaxation was allowed to those only who had good service record.
6. Arguments were heard on 17-2-1999 partly. On 17-2-2000, learned counsel for the appellant wanted time to submit written comments as well, which he had filed on 14-4-2000.
7. I have gone through the record carefully. The appellant has a chequered history of service record. When he had crossed the upper age limit required for selection for the Intermediate Class Course, he was facing major penalty awarded by the respondents. Relaxation in upper age limit was peculiar to the indulgence of the authorities and considering the "chequered service record" of the appellant, they did not allow him the requisite concession/relaxation in age limit etc. Although in the impugned order, dated 3-10-1995 (Annexure. 'J') it was noted that there was "no practice of relaxing of upper age limit for promotion cases" yet the fact of the matter is that the appellant had a shabby record. The impugned order is, therefore, upheld not for the reason stated in the impugned order but for the reason that the appellant has not a record which is required in a disciplined force. The appellant at the relevant time was facing an action which was lecherous.
Although he was exonerated in the criminal case but his record otherwise was also "chequered". He could not claim equal treatment with those who in the opinion of the departmental authorities had enviable service record. Rule of consistency for that reason could not be pressed into service for the appellant. Relaxation in age limit could be given in cases of hardships or where the civil servant concerned would miss the bus for some untoward reason for which he could not be blamed. In the large interest of justice, the Court had asked the respondents to submit a specific reply on the question if any relaxation was ever given to some people as was claimed by the appellant. When specific reply was submitted, it came to light that the appellant had a blemished record and that, therefore, he could not press into service the precedents of those who had an enviable record. Rule of -consistency did not apply with reference to instances as contained in Annexure 'O'. No ill-will was pointed out on the part of the respondents for not allowing relaxation in upper age limit in the case of the appellant. Standard of evidence/material in criminal cases is altogether different than the material on service roll of a civil servant. In service matter, the conduct of a civil servant is to be seen. Result of criminal proceedings could not always influence the proceedings on the departmental side. In some cases, an accused is not prosecuted on some technical grounds but that would not be a bar for the governmental authorities from enquiring into the truth of the charge against him by examining his service record. In the present case, I am not persuaded that the appellant has made out a- case for interference on any ground whatsoever. Consequently, the appeal is dismissed. The parties shall bear their costs.
Appeal dismissed.
2001 L C (C.S.) 256 [Supreme Court (AJ&K)] Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, JJ TANVEER AHMAD versus ROSHAN DIN and 2 others Civil Appeal No,202 of 1998, decided on 12th March, 2000.
Civil service---- ----Appointment---Civil servant despite being more educated than the opposing civil servant, was ignored and opposing civil servant was appointed by the Authority under instructions from some unspecified Authority, without advertising the post-- -Post against which the appointment was made, was not one of the posts which were advertised, but it fell vacant due to promotion of civil servant working on the said post---Post in question having not been advertised which was a mandatory requirement of law, and such mandatory requirement of law having not been fulfilled, appointment was declared to be illegal---Authority was directed to advertise post and to fill the same in accordance with law. [p. 259] A Abdul Rashid Tarrabi v. Azad Government of the State of Jammu and Kashmir and others Civil Appeal No,169 of 1998.
Raja Muhammad Hanif Khan for Appellant.
Ch. Muhammad Ibrahim Zia for Respondent No, 1 .
Date of hearing: 15th February, 1999.
' BASHARAT AHMAD SHAIKH, J.---The appellant, Tanveer Ahmed, filed writ petition in the High Court to challenge the appointment of respondent No,3 Roshan Din as a temporary Junior Clerk (BPS-5) in Girls High School Leepa. The appointment was made on 6th August, 1996 by the District Education Officer under instructions from some unspecified authority. It was challenged on 30th December, 1996 by the appellant by filing a writ petition. The writ petition was dismissed on 8th September, 1998. This appeal has been filed by leave of the Court to challenge the judgment of the High Court.
2. The averments made in the writ petition were that both Tanveer Ahmed and Roshan Din belong to Leepa. Tanveer Ahmed was FA (Second Division) at the relevant time and has also appeared in the B.A. Examination while Roshan Din was a Matriculate. Tanveer Ahmed applied to the Prime Minister and also to the Minister of Education who issued instructions for his appointment but Roshan Din was appointed. The appointment was made without advertising the post. It was a fundamental right of the writ petitioner that the post should have been advertised and test and interview should have been held for selection on merit. Roshan Din was wrongly appointed against a merit list which was prepared when the vacancy had not yet arisen. Tanveer Ahmed filed appeal before the Divisional Director who asked the Divisional Education Officer who had made the appointment, to file his comments but he did not comply with the order. There is administrative anarchy in the Education Department, therefore, there seems to be no use of waiting for the outcome of appeal.
3. The writ petition was contested by Roshan Din alone who stated in the written statement that the posts were advertised on 23rd October, 1995 but the writ petitioner did not submit any application in response thereto. He further stated that on the basis of the advertisement mentioned above a merit list was prepared in which he (Roshan Din) was placed at No,3. His appointment was made on the basis of the same merit list.
4. While dismissing the writ petition a learned Judge in the High Court brought under consideration a facsimile of an advertisement which appeared in the daily 'Nawa-e-Waqat' on 23rd October.
1995 and also a merit list and held that Roshan Din was duly selected candidate while the name of Tanveer Ahmed did not appear in the merit list.
5. The learned counsel for the appellant, Raja Muhammad Hanif Khan, rightly contended that the learned Judge in the High Court did not advert to the real point in controversy which, as stated in the writ petition as well as pleaded in the written arguments, was that Roshan. Din's name appeared in a merit list which had been prepared as a consequence of the advertisement on 23rd October, 1995 which was no longer valid on 6th August, 1996 when the appointment of Roshan Din was made. This point has been vehemently argued in support of the appeal by the learned counsel for the appellant.
6. It was contended by Ch. Muhammad Ibrahim Zia, the learned counsel for respondent Roshan Din that merit list was prepared on 1st of March, 1996 which was still valid when the appointment of private respondent was made.
7. We have gone through the advertisement published on 23rd October, 1995. It shows that there were two posts of Junior Clerks for Muzaffarabad District which were advertised. Accepting the merit list to be correct, the first two persons on the merit list, which is claimed to have been prepared on 1st March, 1996, were Saroosh Gilani and Zafar Iqbal. It has been held by this Court in Abdul Rashid Tarrabi v. Azad Government of the State of Jammu and Kashmir and others (Civil Appeal No,169 of 1998, decided on 15th February, 1999), that a post can be advertised only after a vacancy has arisen and not otherwise.
8. Therefore, if two posts were advertised only two appointments could be made against it. The third person included in the merit list could be validly appointed against that post. The admitted position in the present case is that two vacancies were advertised. A certified copy of the appointment order of Saroosh Gilani, who secured first position in the merit list, shows that he was appointed on 3rd March, 1996. The appointment order of the other person who secured second position is not available on the file but it is nobody's case that the other person did not join and in his place respondent Roshan Din was appointed on 6th August, 1996. The appointment order of Roshan Din excludes any such possibility. It will be useful to reproduce the order:-- "As directed, Mr. Roshan Din son of Abdul Kabir, Matriculate local candidate, resident of Leepa, who had passed the interview and was placed on No,3 in the merit list is appointed as Junior Clerk in Girls High School, Leepa in place of Fazul-ur-Rehman who has been promoted as Senior Clerk. The appointment is made in BPS-5. He will get usual pay and allowances from the school from the date he joins duty." (Translated)
9. The order clearly shows that the post against which Roshan Din was appointed was not one of the posts which were advertised but it fell vacant due to the promotion of Fazul-ur-Rehman. The order also shows that the appointment was made under directions from some higher authorities which is in sharp contract to the appointment order of Saroosh Gilani which contains a clear recital that the appointment was being made on the recommendation of the Selection Board.
10. From the foregoing it is clear that the vacancy against which Roshan Din was appointed occurred during the period of ten months which intervened between the publication of advertisement and appointment of the respondent. In practical terms it means that the post was not advertised which is a mandatory requirement as laid down by this Court in the case mentioned above.
' Consequently we accept this appeal and set aside the judgment of the High Court. Appointment of respondent No,3 Roshan Din is declared to have been made without lawful authority and of no legal effect. The respondents are directed to advertise the post and fill it in accordance with law.
There will be no roder as to costs.