MUHAMMAD YAQOOB vs THE SECRETARY LOCAL GOVERNMENT and others

' Through this judgment I intend to decide the following Writ Petitions No, 2753 of 1995 and 2755 of 1995 together having similar facts and law.

2. The brief facts of Writ Petition No, 2753 of 1995 are that by the Municipal Committee, Tandlianwala Tehsil Samundari, District Faisalabad through an advertisement different posts were announced and the applications were to be filed by 23rd of July, 1992 and one of the post was of Encroachment Inspector. The qualification for the said post was F.A. The petitioner being a graduate in Commerce applied for the said post and appeared in the interview before the Selection Board constituted by the Municipal Committee and was selected in BS-6, vide appointment letter dated 1-8-1992 which is Annexure-B. The petitioner was over-age by 2 years 6 months and 7 days. The Chairman under the Rules was competent to relax the age by two years.

Further relaxation of 6 months and 7 days could be relaxed by the Government. In October, 1992 the Chairman was ousted on account of political maneouvering and the Vice-Chairman became the Chairman. Who on 13-1-1993 vide Resolution No, 43/2 which is AnnexureC of this writ petition terminated the service of 35 persons including the petitioner on the ground that they were burden on the financial resources of the Committee. The petitioner filed application before Deputy Commissioner under the Service Rules against the termination order dated 13-1-1993. The Deputy Commissioner vide order, dated 26th April, 1993 rejected the appeal. Then the petitioner filed revision petition against the said order which was also dismissed by the Secretary Local Government and Rural Development Department, Civil Secretariat, Lahore vide order dated 14-7- 1994 Annexure E-3. Other 33 appointees out of 35 also filed appeals before the Deputy Commissioner and all the appeals were accepted vide order, dated 26th April, 1993 which are Annexure-E, F-1, F-2, F-3, F-4 and F-6.

3. Learned counsel for the petitioner contends that the petitioners were selected and were appointed in a lawful manner under the garb of avoiding financial burden on the Municipal Committee. It is also contended by learned counsel for the petitioners that the similar persons who were appointed on the same advertisement, their appeals have been accepted by the District Magistrate and the petitioners have been discriminated. It is also contended that the Deputy Commissioner has passed the self-contradictory orders, on one hand the persons who were supported by the political personalities were kept in the service and the petitioners who were not supported by any political personality have been kept out of the service by the Deputy Commissioner on the same day through different orders passed by him. He also contends that there is no justification for passing contradictory orders by the District Magistrate on the same day.

It is also contended that the Appellate Authority and the Revisional Authority has not applied its mind before passing orders and the orders are liable to be set aside and the respondents be directed to reinstate the petitioners.

4. Learned Assistant Advocate-General has opposed these petitions on the ground that the petitioners' services have been terminated by the Municipal Committee on the ground that the posts were unnecessarily created by the Ex-Chairman which were burden on the Municipal Committee and the petitioners have been rightly terminated from the services and the District Magistrate had passed correct orders. The services which were necessary were kept in service and the petitioners services were not required, hence their appointments have rightly been dismissed.

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 maneuvered 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, Writ Petition No, 2753 of 1995 is dismissed.

6. As far as the petitioner in Writ Petition No, 2755 of 1995 is concerned, in response to the advertisement in the newspaper he applied for the post of Library Clerk. He was appointed against the said post vide appointment letter dated 1-8-1992 Annexure-B of this writ petition against the vacant post. Admittedly the petitioner joined the service but subsequently when the Chairman was removed and the new Chairman was appointed, he passed the resolution for abolition of the posts of all the persons who were appointed in response to the advertisement Annexure-A of this petition. The Deputy Commissioner vide order dated 2-2-1993 set aside the said notification, by holding that the posts against whom the persons have been appointed have been sanctioned in the budget of the current year as such financial position of Town Committee does not have any adverse effect in continuation of the earlier resolutions. Then by the Deputy Commissioner the appeals against the termination of the employees appointed in response to the advertisement and the resolution were accepted and they were allowed to remain in service except the petitioner and one Muhammad Yaqub through orders passed on the same day. The case of Muhammad Yaqub is distinguishable and I have dismissed his writ petition but the case of the petitioner is at par to the other employees who were appointed in response to the same advertisement and their appeals were accepted by the Deputy Commissioner on the same grounds but the appeal of the petitioner was dismissed by the Deputy Commissioner and the petitioner has been discriminated.

The orders passed by the Deputy Commissioner and subsequently orders in revision petition are based on without applying mind and without any justification. The contentions raised by the learned counsel for the petitioner are sufficiently borne out from the record attached with this writ petition and this Court has found that the petitioner has been discriminated and he was entitled to the same treatment which has been given to the other employees who were appointed alongwith the petitioner on different posts. The petitioner has succeeded in making out a case for the acceptance of the writ petition. The Municipal Committee, Tandlianwala is directed to reinstate the petitioner immediately and as the petitioner has not served Municipal Committee during this period, hence the Municipal Committee Tandlianwala will not be bound to pay the back the benefits to the petitioner. The appointment shall be considered as fresh appointment on the same seat. However, respondents can pass appropriate orders in accordance with law after observing all the necessary formalities. With this direction this petition is accepted.