GHULAM SARWAR Versus GOVERNMENT OF SINDH , Ahmad Ali Memon
1. ABDUL RAHIM KAZI, J: ‑‑ Briefly the facts leading to this petition are that the petitioner No.l was appointed as Assistant Engineer on ad hoc basis by the then University of Sindh vide its Order No. Estt./2207 of 1975 dated 4‑7‑1975. However, subsequently his post was made a permanent post vide Resolution No.20 passed by the University Syndicate on 29‑9‑1975 and the petitioner was allowed to work on permanent basis in view of the said Resolution and his services were also regularised. In the year 1977, the Mehran Engineering and Technology University Ordinance, 1977 (Sindh Ordinance IV of 1977) was promulgated whereby the Mehran University of Engineering and Technology was established and the services of petitioner No.l, who was at that time working as Assistant Engineer in Nawabshah Engineering Campus of the Sindh University stood transferred to the Mehran University of Engineering and Technology. Thus for all purposes, the petitioner No.l became a permanent employee of the said Mehran Engineering University and Technology. During the course of his employment the petitioner No.l also received certain promotions to the post of temporary Executive Engineer and then as Project Director on ad hoc basis. The Syndicate of the Mehran University and the Selection Board approved the appointment of the petitioner No.l as Project Director. It is also the case of the petitioners that in the year 1987‑88 the brother of the petitioner, namely, Ghulam Athar was allowed admission by the respondent No.2 in the Category‑H. It is further the case of the petitioners that petitioners No.2 who is also his brother applied for admission in first year of Bachelor of Engineering/Architecture against the reserved seats of sons/daughters/sisters/brothers of the employees of respondent No.2 in the academic year 1991‑92. The interviews were held by the respondent No.3 on 1‑10‑1992 and a list was issued which showed the name of petitioner No.2 in the category of the brothers of an unconfirmed employee whereupon the petitioner No.l moved an application on 5‑10‑1992 to respondent No.2 for issuance of formal' confirmation order, if not issued already and further requested that the case of the petitioner No.2 be considered in the category of brothers of confirmed employees. However, the respondent No.2 failed to give any reply to the petitioners or take any action and subsequently a final list was issued by the respondent No3 which showed that the petitioner No.2 was not selected in Category‑II wherein he should have been placed at Serial No.17. Finding no other remedy, the petitioners preferred this Constitutional petition praying for the following relief:
(a) It is humbly prayed that this Hob'ble Court will be pleased to declare the action of respondents Nos.2 and 3 in not considering the petitioner No.l as confirmed employee as illegal, ultra vires, mala fide against the Service Rules, regulations, statutes and bye‑laws and further be pleased to declare the petitioner No.l as permanent/confirmed employee of respondent No.2.
(b) To direct the respondent No.3 to admit the petitioner No.2, namely, Ghulam Azhar son of Illahi Bux Kandhir in First Year of Bachelor of Engineering/Architecture for academic year 1991‑92 on the reserved seats of confirmed employees of the respondent No.2.
(c) Award costs throughout. .
(d) Grant any other relief deemed fit. and proper in the circumstances of the case.
2. The respondents have contested the matter and filed counter‑affidavit of one Ali Gouhar son of Laldin, the Deputy Registrar of the respondent No.2. The case of the respondents is that the promotion of petitioner No.l as temporary Executive Engineer does not entitle him to claim his Constitutional rights as confirmed employee and so also his promotion as Project Director on ad hoc basis. He also stated in his counter‑affidavit that Category‑H is divided into two sub‑catogories whereby firstly the cases of real sons and daughters of confirmed employees are considered and after the 20 reserved seats are filled in then only the cases falling in second category i.e. real brothers and sisters of confirmed employees are considered but in case of the present petitioners, the petitioner No.l not being a confirmed employee,, his case is not to be considered. We have heard the submissions of the learned counsel for the parties. Mr. Kamaluddin, the learned counsel for petitioners has referred us to the Prospectus of respondent No.2 for admission to the academic year 1991‑92. As from page 50 of the Prospectus the categories have been specified. Category‑H is at page 51 which provides as under: "Sons/daughters of Mehran University Employees (serving or retired, deceased or working on deputation with other institutions), the employee must be confirmed in the University service and has served at least for a period of three years at the University. Brothers/sisters may apply under this Category, but preference will be given to the sons/daughters. The merit with regard to this category will be determined as per policy of the University 20."
3. A plain reading of this category shows that the brothers, sisters of the confirmed employees are also entitled to apply for admission against these reserved seats but preference will be given to sons and daughters of such employees. All that is required to be eligible for admission in category‑H is that he should be son/daughter or brother/sister of a confirmed employee of respondent No.2, who has served at least for a period of three years at the University. In the present case it is an admitted position that the present petitioner was working as an Assistant Engineer at Nawabshah Campus and on establishment of the University (respondent No.2) his services stood transferred to the respondent No.2 on same terms and conditions. Section 3 of the above referred to Sindh Ordihance IV of 1977 shows that there will be established a University at Nawabshah. Subsection (6) of section 3 reads as under:
4. "(6) All employees including teachers and officers of the University of Sindh serving at the aforesaid additional campus, immediately before coming into force of this Ordinance shall stand transferred for service under the University on such terms and conditions as the University may determine:
5. Provided that such terms and conditions shall not be less favourable than those admissible to such employees immediately before their transfer to the University."
6. It is by virtue of the above provisions that the services of the present petitioner No.l stood transferred to the respondent No.2; and that such transfer of service would not be on the terms and conditions less favourable than those to which he was already entitled while working in University of Sindh. Now the question that arises is as to whether the present petitioner was a permanent/confirmed employee of the University of Sindh. The learned counsel for petitioners has referred to the various documents placed on record. The first one is Annexure‑A which is an order issued by the Registrar of University of Sindh on 4‑7‑1975 which shows that one post of Assistant Engineer had been created for a period of sip: months and petitioner No.l was appointed against that post. The second document is a letter issued by Establishment Officer, University of Sindh on 14th November, 1975 (Annexure‑B) through which the Resolution No.20 passed by the University has been communicated to Treasurer of Sindh University. The Resolution reads as under:
7. "Resolution No.20
8. "Resolved that a post of Assistant Engineer for Nawabshah Campus be created with effect from 12‑7‑1975 (F.N.) on permanent basis and the matter be referred to the Finance and Planning Committee for making necessary provision in the budget estimates."
9. The third document is an order issued by Registrar, University of Sindh on 15‑6‑1976 whereby the present petitioner No.l who was already working as Assistant Engineer on ad hoc basis was appointed as Assistant Engineer against the said permanent post. The other order issued by the University of Sindh is dated 5‑3‑1977 (Annexure‑D) which shows that the services of petitioner No.l are regularised as Assistant Engineer. In view of the above orders which are all passed before the promulgation of Sindh Ordinance IV of 1977 it is clear that the present petitioner was a permanent/confirmed employee of the University of Sindh as Assistant Engineer and consequently under provisions of section 3 (6) of the said Ordinance his services stood transferred to the respondent No.2 on same terms and conditions i.e. he became a permanent/confirmed employee of respondent No.2 since very inception.
10. Mr. Ahmed Ali Memon, learned counsel appearing for respondent No.2 has vehemently argued that the present petitioner No. l is not a confirmed employee as his promotion to the post of Executive Engineer was on temporary basis and also his appointment as Project Director was on ad hoc basis. Even if this contention of the learned counsel for respondent No.2 is accepted, which we are not inclined to accept in view of the reasons to follow, still the subsisting appointment of petitioner No.l remains as that of confirmed Assistant Engineer and he cannot be said to be an unconfirmed employee. The words in Category‑H of the Prospectus of respondent No.2 are that the employee must be confirmed in the University service and had served at least for a period of three years at the University. In these circumstances, the present petitioner No.l fulfilled both these conditions. However, a reference made to Resolution No.37.1 passed by the Selection Board in its 37th meeting held on 29‑4‑1989 shows that the promotion of the petitioner No.l as Project Director with effect from 1‑1‑1989 is approved and recommended to the
11. Syndicate for approval; and that consequently the Syndicate had approved the same.
12. In view of the above discussion, we have come to the conclusion that A for all purposes the present petitioner No.l is a confirmed employee of the respondent Not and entitled to all the benefits accruing to confirmed employees including the right of his son/daughter/brother/sister to apply for admission to the University.
13. The learned counsel for petitioners has pointed to another aspect of the case. He has submitted that another brother of the petitioner, namely; Ghulam Athar had applied for admission to the respondent Not in the year 1987 in Category‑H and he was allowed the admission although at that time no objection of any sort was raised, to the effect that the petitioner was an unconfirmed employee. Replying to this contention Mr. Ahmed Alt Memon, Advocate for respondent No.2 has submitted that at that time the seats were available and, therefore, no objection was taken against the admission of said brother of petitioner. Be that as it may, a plain reading of Category‑H would show that it was necessarily required for a candidate that he should be son/daughter/brother/sister of a confirmed employee having at least three years' service; and that if such employee was unconfirmed, then he was not entitled to benefit in Category‑H. We, therefore, do not agree with the contention of Mr. Ahmed Ali Memon, Advocate on this point also. In this present case the learned counsel for respondent No.2 has placed on record a list of 20 candidates admitted in Category‑H which shows that only 12 candidates have been admitted against the preferential sub‑category of sons and daughters while 8 candidates have been admitted against the category of brothers/sisters. According to the petitioners, the petitioner No. 2 Ghulam Azhar had secured 71.29% marks in Matriculation and 68.45% marks in Intermediate Examination and if compared with the list of the selected candidates filed by the respondent No.2, the present petitioner No.2 will stand at Serial No.17 and would be entitled to admission as a matter of right.
14. In this view of the matter we allow this petition as prayed and declare that the refusal of respondents Nos.2 and 3 in granting admission to petitioner No.2 is without any legal authority and direct that the petitioner No.2 be granted admission in Category‑H as prayed. However, there will be no order as to costs.
15. Above are the reasons for the short order announced in Court on 24th May, 1993.
16. AA./G‑348/K Petition accepted.