MUHAMMAD YAQOOB Versus SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, LAHORE

JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment, dated 19-10-2001 passed by the learned Single Judge of the Lahore High Court, in Chambers, whereby the writ petition preferred on behalf of petitioner has been dismissed.

2. Precisely stated the facts of the case are that certain posts were advertised by the Municipal Committee, Tandalianwala, Tehsil Samundari, District Faisalabad. The petitioner was selected by the Selection Board constituted by the Municipal Committee for the post of Encroachment Inspector (B-6) being Graduate in Commerce whereas the prescribed qualification for the said post was F.A. The appointment of the petitioner was made by means of letter dated 1-8-1992. It is worth mentioning here at this juncture that at the time of appointment, the petitioner was over-age by 2 years, 6 months and 7 days. In the year 1992 due to change in the Chairmanship of Municipal Committee 35 employees were removed from service vide order dated 13-1-1993. Out of 35 employees, 33 approached the Deputy Commissioner being appellate authority for the redressal of their grievances and the learned Deputy Commissioner accepted the appeals of 33 employees but rejected the appeal of petitioner by means of order dated 26-4-1993. Being dissatisfied, the petitioner preferred a revision petition before the Secretary, Local Government and Rural Development Department, Lahore, which too was rejected. The petitioner approached the learned High Court by way of writ petition which was dismissed vide judgment impugned, hence this petition.

3. Rana Muhammad Arif, learned Advocate Supreme Court entered appearance on behalf of petitioner and argued vehemently that the petitioner has been victimized due to extraneous and political considerations and his appeal and revision petition were rejected by learned Deputy Commissioner and the Secretary, Local Government and Rural Development Department, Lahore, respectively without assigning any reason. It is contended that there was no legal justification for the rejection of his appeal and revision as his case was identical and at par with rest of the employees who were terminated from service and subsequently reinstated after acceptance of their appeals by the Deputy Commissioner which aspect of the matter has been ignored by the learned Single Judge of the High Court resulting in serious miscarriage of justice. It is contended that relaxation of 2 years in the upper-age limit was granted by the Chairman, Municipal Committee, Tandlianwala, who was competent to do so and his case for further relaxation of 6 months and 7 days was referred to the Provincial Government, hence by no stretch of imagination his appointment can be declared as illegal or void. It is also pointed out that all the 35 employees were removed on the basis of financial stringency but amazingly 33 employees were reinstated which otherwise is not convincing reason for removal of the employees who were employed after completion of all the necessary formalities. It is also pointed out that the Government of Punjab has been relaxing the upper- age limit up to 5 years for employment in Grade 1 to 15 and a notification to this effect was also issued which was brought to the notice of learned High Court, which was not considered without any rhyme and reason.

4. Mrs. Afshan Ghazanfer, learned A.A.-G. Punjab, appeared on Court notice and attempted to support the judgment impugned but conceded that the question concerning age relaxation and its determination falls within the jurisdictional domain of the Chairman or the Provincial Government which according to her could relax the age. She could not refute, as is indicative from record, that the petitioner was appointed by the Selection Committee after completion of all the mandatory formalities. The learned Assistant Advocate-General, however, contended that since no final order was passed qua the relaxation in upper-age limit of the petitioner his appointment was irregular.

5. We have carefully examined the respective contentions as agitated on behalf of the parties and perused the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:---

"5. I have heard the learned counsel for the parties and also perused the documents attached with this petition. The petitioner Muhammad Yaqub in Writ Petition No.2753 of 1995 when appointed was over-age by two years 6 months and 7 days, it has been admitted by the learned counsel for the petitioner that the age uptil two years could be relaxed by the Chairman 'and not beyond the above, hence he recommended the case of the petitioner Muhammad Yaqub for relaxation of age to the Government of Punjab. But his age was not relaxed and his appointment was subject to the relaxation of age. Therefore, it cannot be said that the petitioner was appointed on a vacant post and the petitioner was qualified for the same. The appointment has been made by the Chairman without giving relaxation in the age, hence, the appointment of a person who was not qualified to be appointed for the post, this Court cannot exercise its discretionary power in favour of petitioner who was not qualified and has been manoeuvred in spite of over-age more than 2 years and 7 months. Hence, I am not inclined to issue any direction to the respondents and this writ petition cannot be accepted and this writ petition i.e. W.P. No.2753 of 1995 is dismissed. "

6. A bare perusal of the operative portion of the judgment impugned as reproduced hereinabove would reveal that the learned Single Judge of the High Court in Chambers has erred while holding that the appointment of petitioner was illegal as he was over-age at the time of appointment which is its oblivion of the fact that the upper -age limit up to 2 years had been relaxed by the Chairman in the following terms:---

7. The case of petitioner for relaxation of 6 months and 7 days in upper-age limit was sent to the Government of Punjab by the Chairman, Municipal Committee Tandalianwala, on the wrong assumption that he was not competent to relax the upper-age limit beyond 2 years. The Chairman probably was not aware regarding his power as conferred upon him under rule 5(3) of the Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983, whereby relaxation in upper-age limit can be given by him up to 5 years. We are of the considered view that the learned High Court has erred while holding that the appointment of petitioner was illegal being un-qualified for such appointment which is in negation of the relevant record.

8. In sequel to above mentioned discussion, the petition is converted into appear and accepted. The Chairman Municipal Committee, Tandalianwala, is directed to reinstate the petitioner with immediate effect and the question of upper-age limit up to 6 months and 7 days be determined as may be deemed fit and proper pursuant to the provisions as contained in rule 5(3) of the Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983, keeping in view the fact that 2 years relaxation in upper-age limit had already been given by the Chairman who is competent to give relaxation in upper-age limit up to 5 years.

M.B.A./M-178/S Order accordingly.