Suit of the plaintiff Saeed Ahmad for declaration that defendants Nos. 1 to 3 were found to regularise the part time services of the plaintiff and that appointment of respondent No.4, Allah Nawaz by Order No.15307-24, dated 10-4-1988 issued by respondent No.3 appointing defendant No.4 as regular Chowkidar in Government Primary School, Talai Budha Shah Gharbi is wrong, collusive, without jurisdiction and against law as such ineffective on his rights was decreed by the judgment and decree, dated 4-10-1995 of Mrs. Zar Qaish Sani, Senior Civil Judge, D.I. Khan.
Aggrieved by the said judgment and decree Allah Nawaz, defendant No.4 filed an appeal in the Court of the District Judge, D.I. Khan, who, however, by his judgment and decree dated 6-2-1996, accepting the appeal, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff.
2. Dissatisfied with the findings of the learned District Judge, Saeed Ahmad, plaintiff has come to this Court in the instant civil revision petition under section 115, C.P.C. In his written statement defendant No.4, Allah Nawaz submitted that appointment against the regular post of Chowkidar could only be made on the recommendation of the concerned M.P.A. And that since the plaintiff had not been recommended by the Local M.P.A. He was not entitled to the said post and since defendant No.4 had been so recommended for regular appointment by the M.P.A. He was properly appointed. He also stated that he had donated two Kanals of land for the construction of Government Primary School, Talai Budha Shah while no such land had been donated by the plaintiff. In Saleem Bacha Appellant v. Sub-Divisional Education Officer (Male) Timar Garah-Dir and 2 others-Respondents (1993 SCMR 1289), the august Supreme Court held:-- "As regards the policy of making appointment against land grants, we find that these amount to, in fact, sale of public office for property. Not only it is against the Constitutional law applicable to public office but is not conducive to public interest. What could be done within the framework of the law was to create margin of preference for those who make such grants, other conditions of eligibility and suitability and fitness being equal. We, therefore, overrule this practice prospectively."
Regarding allocation of quota post to local M.P.As. Their Lordships held in the same judgment.-- .
"As regards the allocation of quota of post to the local M.P. As. Or M.N.As. For recruitment to the posts, we find inoffensive to the Constitution and the law, on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The Service Laws designate, in the case of all appointments, the departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superiors. In the circumstances allocation of such quotas to the Ministers/M.N.As/M.P.As. And appointments made thereunder are all illegal ab initio and have to be held so by all Courts,- tribunals and authorities."
Thus, the assertion of the defendant that the plaintiff had not been recommended for regularization by the concerned M.P.A. And that he had not donated any land for the construction of the school, finds no substance in view of the verdict of the apex Court of the land.
3. In a meeting of the Chairman, District Development Adviser Committee held on.22-9-1987 under the Chairmanship of Minister for Education, N.-W.F.P. Certain decisions were taken regarding regularization of the services of part timers besides other decision. It was decided that:-- "The persons who have already been appointed as part time Chowkidars be regularized. However, the genuineness of their appointments, be ascertained by the M.P.As. Before regularization. The remaining posts be filled by the persons who donated land free of costs for the school on the recommendation of the concerned M.P.As."
While appearing as P.W.4, the plaintiff stated that he had been appointed as part time servant at G.P.S, Budha Talai Shah, Tehsil Kulachi in 1982 and that he was duly paid Rs.75 per month as part time allowance. According to him it was committed that when a post of Chowkidar was sanctioned for the School he would be regularized against the said post but when the post was sanctioned he applied to the department for regularization but instead defendant No.4, Allah Nawaz was appointed as Chowkidar in the school. Abdur Rehman Shah, Senior Teacher, G.P.S, Talai Budha Shah while deposing as P.W.3 stated that according to the disbursement register, copy Exh. PW.3/1, the plaintiff had been performing his duties as part time servant since September, 1983 to November, 1987 and that he had been duly made the payment at the rate of Rs.75 per month as part time allowance. In his letter, Exh. PW 1 /9 the Sub-Divisional Education Officer (Male) Kulachi addressed to the District Education Officer (Male) D.I. Khan, Allah Nawaz, defendant No.4 has been shown at serial No.9 to have been recommended by the M.P.A. Concerned for regularization/appointment as Class-IV servant. In the column regarding name of part time servant against the said entry, Saeed Ahmad, plaintiff has been recorded. Thus, from the official record it is clear that the plaintiff had been performing the duties as part time servant and in accordance with the decision of the Chairman, District Advisory Committee, referred to above, it was incumbent upon the appointing authority to have regularized the plaintiff against the regular Class-IV post. Even the Government of N.-W.F.P. Education Department in its Letter No.SO-(G) Edu- 6-89/88, dated 27-9-1988 described such appointments as irregular.
The subject of the said letter reads:-- "Irregular political appointments to various posts/services."
The said letter reads:-- "I am directed to refer to subject cited above and to state that it has been observed during the period from 1-1-1986 to 29-5-1988 that irregular appointees were made against B-I (Chowkidar) in various educational institution and deserving persons who were serving on part time and persons who had donated land free of costs for the construction of educational institution were ignored. In order to adjust these deserving people the Secretary, Education, N.-W.F.P. Has desired that:--
(a) Details of all Grade-I posts sanctioned w.e.f. 1-7-1988 may immediately be provided to this department.
(b) No appointment against the newly-created and otherwise vacated post in Grade-I be made unless the abovesaid deserving persons are absorbed completely.
(c) Progress report in this respect- may be sent to this department every month.
From the above resume it is clear that against the vacancies created on regular basis the first and for most right for regularization was to regularize those persons who were performing duties in B-I on part time basis. Ignoring such part time servants against regular vacancies was even condemned by the department itself. Non-consideration of the plaintiff against regular seat was in clear violation of the decision taken by the Chairman of the District Advisory Committee held under the Chairmanship of the Minister for Education and, secondly, it~ was deprecated by the Government of North---West Frontier Province, Education Department in its letter copy Exh.P. W. l /6.
4. Besides, the very appointment order is illegal because the appointing authority has not exercised his independent power in appointing the Class-IV establishment, as vested in him alone under the N.-W.F.P., Civil Servants Act, 1973. On the contrary perusal of the appointment order copy Exh. P. W. 1 /2 suggests that the appointments were made on the recommendation of Haji Ataullah Khan, M.P.A., Tehsil Kulachi. In his application copy Exh.P.W.l/8, the plaintiff had applied for his regularization against the regular post of Naib Qasid in G.P.S., Talai Budha Shah wherein he submitted that he belonged to the same village, he was of good health, the land on which the school had been constructed was his ownership and that he has been serving on part time basis in the said school since 1982. This application was duly recommended by the M.P.A. On the other hand Allah Nawaz, defendant applied for his appointment as Chowkidar, stating that he was a poor man and belong to a gentle family. Copy of his application is Exh.P.W.l/D.2. Both, plaintiff Saeed Ahmad and defendant Allah Nawaz claimed to have donated the land for construction of the school.
Muhammad Aslam, Patwari, while appearing as P.W.2 has stated in cross-examination that no land had been alienated in favour of Education Department for the building of the school by any person.
Thus, in no sense Allah Nawaz, defendant was on a better-footing to be given preference in appointment over Saeed Ahmad, plaintiff. On the contrary Saeed Ahmad, plaintiff having served the department as part time servant for more than five years had the right to have been regularized in the absence of any material suggesting any activities debarring the plaintiff from such appointment.
5. The contention that the plaintiff was required to get his grievance redressed through the Service Tribunal, suffice it to say that the plaintiff was not a regular civil servant within the meaning of section 2(b) of the N.-W.F.P. Civil Servants Act, 1973, being a part time servant, paid from contingencies and as such he had no remedy available with the Service Tribunal and the only recourse open for him was to bring a civil suit. In this respect. I am fully fortified by a judgment of this Court in C.R. No. 186 of 1991 (Ghulam Yaseen v. Government of N.-W.F.P.)
On the view of the matter that I take, I hold that the plaintiff had the preferential rights to be adjusted against the regular seat as against Allah Nawaz, who was altogether a stranger for all intents and purposes Consequently while accepting this civil revision petition I set aside the judgment and decree of the District Judge, D.I. Khan and by restoring th--e judgment and decree of the Senior Civil Judge, D.I. Knan decreed the suit of the plaintiff.