KASHIF MEHMOOD ZAMAN Versus CHIEF EXECUTIVE OFFICER, DISTRICT EDUCATION AUTHORITY, LAHORE

ABID HUSSAIN CHATTTHA, J .----Brief facts of this case are that the father of the Petitioner was a regular employee of School Education Department, Government of the Punjab and died on 18.04.2007 while serving as PST (Primary School Teacher). The Petitioner as an unemployed child of the deceased Civil Servant applied for appointment against the post of Junior Clerk vide application dated 06.12.2012 under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 (the "Punjab Civil Servants Rules"). However, the Petitioner was appointed as Lab Attendant (BS-01) on contract basis vide appointment letter dated 26.11.2013. Since the Petitioner was having F.A. qualification with typing speed up to 40 words per minute and had applied for the post of Junior Clerk (BS-7) under Rule 17-A of the Punjab Civil Servants Rules, therefore, he protested against the post of Lab Attendant but was verbally assured by the Department that he will be given regular appointment against the post of Junior Clerk after some time and he may join the post of Lab Attendant for the time being which was initially for the period of three years but subsequently extended for further period of three years till 27.11.2019 vide order dated 01.11.2016. The Petitioner in the meanwhile, pursued the Department regarding the appointment against the post of Junior Clerk. Eventually, the Petitioner after passing the typing test was selected against the post of Junior Clerk and was appointed as such on 06.06.2017 on contract basis. In order to join the said post of Junior Clerk, the Petitioner resigned from the post of Lab Attendant vide letter dated 01.06.2017 with a notice of one month effective from 01.07.2017 but the same was not accepted vide letter dated 29.07.2017, wherein, it was stated that the resignation letter has not been accepted on account of differences of date on the stamp paper and resignation letter. In the meanwhile, the Petitioner duly submitted his acceptance against the post of Junior Clerk but the Respondent Department, declined to join him as Junior Clerk on the ground that he has availed appointment against the post of Lab Attendant under Rule 17-A of the Punjab Civil Servants Rules and as such he cannot be appointed as Junior Clerk. Perplexed with the given situation, when the Petitioner was asked to resign again, he refused to resign and submitted an application to continue his previous employment as Lab Attendant by submitting an application to Respondent No. 3 for recalling the resignation letter which was yet to be effective and was not accepted by the competent authority till 29.07.2017. The Respondent No. 3 had initially accepted the Petitioner's request regarding withdrawal of his resignation application and allowed him to perform his duty as Lab Attendant even after 01.07.2017 as is evident by the letter dated 29.07.2017 but eventually accepted the resignation letter on 01.08.2017. In short, the Department on the one hand accepted the resignation letter on 01.08.2017 with immediate effect as Lab Attendant and on the other hand, withdrew the appointment letter for the post of Junior Clerk on 01.08.2017, thereby, depriving the Petitioner from his right to have one appointment under Rule 17-A of the Punjab Civil Servants Rules.

2. Since then, the Petitioner is running from pillar to post but Respondent No. 3 or the Respondent No. 1 has not been open to resolve the issue. In this back ground, the Petitioner sought for the acceptance of his Petition seeking a direction that the Petitioner is entitled for the benefit as provided under Rule 17-A of the Punjab Civil Servants Rules and prayed for setting aside the impugned order dated 01.08.2017 passed by the Respondent No. 3 seeking his reinstatement into service with all consequential back benefits by declaring him as a regular Lab Attendant (BS-01) w.e.f. 26.11.2013 or in the alternative for setting aside the impugned order dated 01.08.2017 passed by Respondent No. 1 seeking a declaration that he be declared entitled to the post of Junior Clerk (BS-07) in accordance with Rule 17-A of the Punjab Civil Servants Rules with further direction to Respondents to allow him to join his service as Junior Clerk.

3. Before proceedings further, it is importantly stated that this Court on 16.01.2018 in C.M. No. 02 of 2018 while granting him interim relief had suspended the operation of both the impugned orders dated 01.08.2017 directing the Respondents not to fill the posts of Junior Clerk and Lab Attendant with respect to the claim of the Petitioner.

4. The Department in its reply has confirmed the facts stated above but has taken the position that the Petitioner was appointed as Lab Attendant in BS-01 on contract basis under Section 17-A of the Punjab Civil Servants Rules, he willingly resigned on 01.06.2017 and his resignation was accepted on 01.08.2017. The Petitioner concealed the fact of appointment as Lab Attendant, therefore, he was not allowed to join as Junior Clerk because the benefit of Rule 17-A of the Punjab Civil Servants Rules, could have been extended only one time to the Petitioner.

5. This a classic case where the department has failed to resolve a trivial, issue for the last many years and the Petitioner was made to suffer extreme hardship and embarrassment in his endeavor to seeks his right under the law. In the first place, he was offered a poston contractual basis that was below his qualification on the promise that he will be accommodated against a suitable position as per his qualification. But later on when he passed the test and was selected against the post of Junior Clerk, he was accused of concealling his previous contractual post. Even the post of Junior Clerk was accorded on temporary basis whereas under Rule 17-A of the Punjab Civil Servants Rules, such appointment is required to be on regular basis. In case titled, Ali Ahmad v. Executive District Education Officer, Sialkot and another 2014 PLC (C.S.) 793, it has been declared that Rule 17-A of the Punjab Civil Servants Rules provides for a regular appointment of a child of deceased Civil Servant and a contractual appointment is alien to the said Rule. Paragraph No. 10 of the Judgment is reproduced as under:-

"10. Even otherwise, when the appointment was made under Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, we have to restrict ourselves to the terms and conditions provided in the relevant rules. By going through the whole of the scheme provided in the said rules, the appointment on contract basis is alien to such scheme of law provided under the said rules, particularly, Rules 3 and 7 thereof, which talk about the initial recruitment, the appointment on acting charge basis, or appointment on current charge basis, the appointment by promotion on officiating basis etc, but nowhere, in whole of the said scheme, the Authority has been made competent to appoint any person on contract basis."

In the case titled, Sulman Amjad and others v. Government of Punjab and others 2020 PLC (C.S.) 168 it has been held that appointment of a child of deceased Civil Servant under Rule 17-A of the Punjab Civil Servants Rules on contract basis is not justified and the same would amount to deprive the beneficiary from the true spirit of the said rule and the authority was directed to make new appointment of the Petitioner under Rule 17-A of the Punjab Civil Servants Rules on regulation basis and regularized the services of all the employees who were appointed under the Rule 17-A of the Punjab Civil Servants Rules.

6. Even with respect of his resignation letter, which vas recalled on 23.06.2017 but notwithstanding the same, was accepted on 01.08.2017, it was held in case titled, Syed Faisal Raza Gillani v. Lahore High Court, Lahore through Registrar and others 2015 PLC (C.S.) 337 that if a resignation letter is recalled before its acceptance it cannot be accepted. However, the resignation letter of the Petitioner with respect to his appointment as Lab Attendant was unilaterally accepted without providing any opportunity of hearing to confirm the fact of recalling the said resignation from the Petitioner.

7. It is unequivocally evident from the record that the Petitioner had sought one appointment under Rule 17-A of the Punjab Civil Servants Rules as per his entitlement in accordance with his qualification and the matter could have been easily resolved by the Department by appointing him as Junior Clerk and accepting his resignation as Lab Attendant. The mere fact that he was given a temporary appointment as Lab Attendant could not be regarded as regular appointment under Rule 17-A of the Punjab Civil Servants Rules under which the Petitioner was entitled to regular appointment of Junior Clerk. It is noted that the Petitioner was appointed against the post of Junior Clerk on contractual basis which too was not permissible. In view of the facts and circumstances of the case and considering extreme hardship suffered by the Petitioner, his resignation letter with respect to Lab Attendant shall stand accepted. The impugned order dated 01.08.2017 passed by Respondent No. 1 is set-aside and he is allowed to join as Junior Clerk (BS-07) as per his appointment Order No. 3607/Admin-III dated 06.06.2017 with respect to his appointment under Rule 17-A of the Punjab Civil Servants Rules. The competent authority of the Department is directed to decide the issue of back benefits in accordance with law. The Department is further directed to forthwith initiate the process of regularization of service of the Petitioner as Junior Clerk in accordance with law. Petition is accepted in the above terms.

KMZ/K-19-L Petition allowed.