Briefly stated facts of the writ petition are that Rural Water Supply Scheme Thobai was completed in the year 1990 on the spring Thobai, located in tribal area of D.G. Khan and at the time of initiating the said scheme it was decided and settled by the local authorities that the post of caretaker of the said water supply tank shall be given to the owner of the water spring.
2. The petitioner was appointed as caretaker of the said tank by the Public Health Engineering Department. Respondent No,1, who was also a claimant for the said post challenged the said appointment of the petitioner on the ground that he is owner of the spring on which the A water supply is based whereupon respondent No,3, referred the matter to Political Assistant D.G. Khan for verification of the ownership of the spring. He obtained a report in that behalf from Political Naib Tehsildar which was in favour of the petitioner. However, on subsequent inquiry by Political Tehsildar, D.G. Khan it was found that respondents Nos.1 and 2 are the owners of the spring.
Anyhow, instead of verifying ownership, the Political Assistant vide letter dated 25-11-1991, directed respondent No,3, that there was no sound reason for disturbing the appointment of the petitioner on the basis of disputed claim over the ownership of the spring.
3. Appeal of respondents Nos.1 and 2 against that order of Political Assistant was dismissed by Commissioner, D.G. Khan on 3-5-1992. Aggrieved thereby the said respondents filed a civil revision before the Secretary Law which was accepted on 3-10-1999.
4. The aforesaid order of Secretary Law is called in question by the petitioner in this writ petitio4 as without jurisdiction, without lawful authority and of no legal effect.
5. Learned counsel for the petitioner urged that concurrent orders of the Political Assistant and the Commissioner about the suitability of candidate for the post of caretaker were set aside in revision by Secretary Law (respondent No,4) in a conjectural manner on the basis of ownership of the spring which was quite irrelevant; that it was borne out from record that duty of caretaker of water tank was being satisfactorily performed by the petitioner; matter of appointment of the petitioner was of administrative nature hence appeal and revision by respondents Nos.1 and 2 were not competent.
6. The petition is strongly opposed by the learned counsel for the respondents. Arguments heard.
Writ petition, its annexure and report/comments submitted by respondent No,3, perused.
7. It is not disputed that at the time of initiating the water supply scheme it was agreed and settled between the Public Health Engineering Department and the people of the said tribal area that post of caretaker of the water tank shall be given to the owner of the water spring. Both the petitioners as well as respondents Nos.1 and 2 claimed ownership of the spring and applied for the appointment of caretaker. The matter was referred by the appointing authority (respondent No,3) to the Political Assistant D.G. Khan for verifying the ownership of the spring, meanwhile petitioner was appointed till the decision of ownership. Instead of verifying the ownership, Political Assistant had directed respondent No,3, not to disturb the appointment of the petitioner on the basis of disputed claim of ownership of the spring when as a matter of principle it was admittedly decided and settled by the local authorities t'iat the post of caretaker of water supply shall be given to the owner of the spring on which the water supply is based. The said direction of the Political Assistant to the appointing authority was obviously uncalled for illegal and without jurisdiction.
8. A perusal of the order passed by Commissioner in appeal reveals that he also did not advert to the crucial point about the ownership of the spring despite being mindful of the fact that according to record perused by him, the caretaker/operator of the water supply scheme was to be appointed out of the locals of the area, who owned the spring from which water was obtained.
9. Reasons stated by the learned Commissioner for dismissing the appeal were that the petitioner was satisfactorily performing his duty and there was no complaint against him.
10. The issue which required consideration was eligibility of the parties regarding the post, which was ownership of the water spring. Said issue was not at all adverted to either by the Political Assistant or the Commissioner and report of Political Tehsildar that respondents were owners of the spring was completely overlooked and ignored according to which the petitioner not being owner of the water spring was not eligible for appointment to the said post.
11. A perusal of the impugned order passed by Secretary Law shows that the issue in question regarding eligibility of the candidate for the post concerned was properly dealt with in accordance with the decision and settlement of the Public Health Engineering Department regarding appointment for that post. It was established on record that respondents being owners of the water spring were eligible whereas the petitioner who was not the owner of the spring was not eligible for the appointment against the aforesaid post. One of the respondents had surrendered his right in favour of the other.
12. Concurrent orders of the Political Assistant and Commissioner were not only against record but were also arbitrary and fanciful. Moreover, they were not appointing authorities and the appointing authority (respondent No,3) had simply requested the Political Assistant for the verification of ownership of the spring between the rival candidates.
13. Satisfactory performance of duty by a person who is otherwise not eligible for appointment cannot make his appointment lawful.
14. Objection of the petitioner's counsel that matter of appointment being administrative in nature hence appeal and revision were not competent cannot be entertained as the said objection was not raised in the aforesaid forums.
15. Relief under writ jurisdiction is based on the principle of equity hence discretion under said jurisdiction is not exercised where substantial justice has . Been done though impugned order may be technically incorrect and setting it aside would be iniquitous. In this case substantial justice was done by directing the competent authority to appoint the person who was eligible for the post in place of an ineligible person.
16. For the foregoing reasons, the writ petition is without any merit and it is accordingly dismissed.