PLJ 2009 Tr.C. (Services) 228

[Punjab Service Tribunal, Lahore]

Present: Fakhar Hayat, Member-IV.

RASHID MUNIR, LABORATORY ATTENDANT, GOVT.

HIGH SCHOOL SAHIWAL--Appellant

versus

EXECUTIVE DISTRICT OFFICER (EDUCATION),

SAHIWAL and 2 others--Respondents

Appeal No. 1098 of 2007, decided on 23.4.2008.

Punjab Civil Servants (Appointment, Conditions & Service) Rules, 1974--

----S. 17-A--Punjab Civil Servants Act, 1974, S. 2(2)--Civil servant--Appellant was appointed as Lab Assistant--Now civil servant was treated as contract employee--Challenge to--Appointment order was substituted--Scope of Punjab Civil Servants Act--Whether by promotion shall deemed to have been made on regular basis if it legislation--By amendment in Contract Appointment Policy, 2004 a venture has been made to make the Contract Appointment Policy, applicable to the cases mentioned in Rule 17-A of Rules, 1974--Held: Amendment in Contract Policy to extent of its applicability in cases falling u/S. 17-A of Rules, 1974 is contrary to law--Contract Appointment Policy was issued by Govt. of Pb. in accordance with Punjab Civil Servants (Appointment, Conditions of Service) Rules, 1974 and policy is inferior legislation to rules--Advice of EDO (E) to DEO (Secondary) Directing the latter to substitute his order converting regular mode of appointment of civil servant into contract under the policy was therefore, not contract--Appeal was accepted.

[Pp. 230 & 231] A, B, C, D & E

2002 AZAD J & K 14, ref.

Mian Jaffar Hussain, Counsel for Appellant.

Mr. Robin Inayat Bhatti, Deputy District Attorney for Respondents.

Shah Baig Hussain, Law Officer for Respondent No. 1.

Mr. Muhammad Saleem Akhtar, on behalf of Respondent No. 2.

Date of hearing: 23.4.2008.

Judgment

On death of appellant's father who was earlier serving in the department, the appellant being qualified for the post of Junior Clerk applied for the same under provisions of Section 17-A of the Punjab Civil Servants (Appointment, Conditions & Service) Rules, 1974. He was however offered the post of Lab Attendant (BS-1) and he joined the duty on 09.8.2006. The Respondent No. 2 later issued a letter on 02.12.2006 substituting earlier letter of appointment dated 7.8.2006 whereby the appellant was now treated as contract employee. Feeling aggrieved he filed a departmental appeal with the Respondent No. 1 and after lapse of statutory period, instant appeal was filed.

2. It has been contended on behalf of appellant that impugned order dated 2.12.2006 (mentioning the date as 07.8.2006) was against law because appointment letter of the appellant on regular basis was passed by the competent authority which is still in the field but by way of subsequent letter his services was treated as on contract. Departmental appeal of the appellant was also later rejected on 5.4.2007 which too has now been impugned by way of the amendment.

3. The respondents in their parawise comments explained that appointment order of the appellant was earlier made on regular mode but later the department came to know that Government of the Punjab, Services &. General Administration Department vide letter dated 5.8.2006 had changed the mode of recruitment into contract and as such in order to avoid complications of audit, the appointment held by the appellant was modified as on contract basis.

4. Arguments advanced on behalf of parties have been considered and relevant record gone through.

5. Appointment order dated 7.8.2006 issued by Respondent No. 2 shows that the appellant was appointed as a Lab Assistant in BS-1 under the provisions of Rule 17-A of the Punjab Civil Servants (Appointment, Conditions &. Service) Rules, 1974 as his father while working as EST had expired during service. The appointment letter was thereafter substituted into same date though signed by the Respondent No. 2 on 2.12.2006 and now the appointment was said to be on contract basis. This was done in pursuance of a notification dated 5.8.2006 issued by Services & General Administration Department (O & M Wing) whereby existing sub para-xi of para-iii of the Contract Appointment Policy, 2004 was substituted. Relevant portion of the substituted para is reproduced below:--

XI MAINTENANCE OF PRESCRIBED QUOTAS

(i) ......................

(ii) The provisions of Rule 17-A of the Punjab Civil Servants (Appointment, Conditions & Service) Rules, 1974 and the relevant instructions/guidelines issued in this behalf from time to time shall be applicable mutatis mutandis for employment of one of the unemployed children, wife/widow of civil servants who dies while in service or is declared invalidated/incapacitated, under this policy.

It was in this back drop that the appointment order was substituted. Learned counsel for the appellant laid much stress on the point that firstly the contract policy was violative of the service laws and secondly it was against the principles of locus poenitentiae. Learned DDA on the other hand argued that an authority which is competent to pass an order is also competent under General Clauses Act to recall the same.

6. Under Section 2(2) of the Punjab Civil Servants Act, 1974, for the purpose of said Act, an appointment, whether by promotion or otherwise shall deemed to have been made on regular basis if it legislation. A reference was also made to Arif Hussain Dar V/s Board of Revenue through Secretary, Muzaffarabad and 5 others (2002 Azad J&K 14) according to which policy or notification could not override statutory rules framed by Government under the statute and executive instructions and policies could not amend statutory rule. The Punjab Civil Servants (Appointment, Conditions of Service) Rules, 1974 were framed u/S. 23 of the Punjab Civil Servants Act, 1974. By amendment in the Contract Appointment Policy, 2004 a venture has been made to make the Contract Appointment Policy, 2004 applicable to some cases mentioned in Rule 17-A of Punjab Civil Servants (Appointment, Conditions of Service) Rules, 1974. As per case law referred to above a policy or notification could not override statutory rules framed by Government under the statute and executive instructions and policies could not amend statutory rules. In this view of the matter it could safely be concluded that aforementioned amendment in Contract Policy to the extent of its applicability in cases falling under Section 17-A of Punjab Civil Servants (Appointment, Conditions of Service) Rules, 1974 is contrary to law.

7. During the course of arguments, learned counsel for the appellant placed on record photocopy of Letter No. RER.5-79/96/931 dated 28th March, 2007 from Law & Parliamentary Affairs Department to the Chief Secretary, Government of the Punjab, on a reference made by the latter, wherein an opinion was given that Contract Appointment Policy was issued by the Government of the Punjab in accordance with the Punjab Civil Servants (Appointment, Conditions of Service) Rules, 1974 and the policy is inferior legislation to rules. It was further opined that one Mr. Muhammad Ramzan was entitled to get job on regular/permanent basis according to Rule 17-A of Punjab Civil Servants (Appointment, Conditions of Service) Rules. The advice of the Respondent No. 1 to Respondent No. 2 dated 29.11.2006 directing the latter to substitute his order dated 7.8.2006 converting regular mode of appointment of the appellant into contract under the aforementioned policy was, therefore, not correct. Impugned orders thus could not sustain in the eye of law.

8. As a result of above discussion, appeal of the appellant is accepted and impugned orders dated 02.12.2006 (mentioning the date therein as 7.8.2006) and appellate order dated 5.4.2007 are set aside. The appellant shall be treated to be a regular appointee from the very outset.

(R.A) Appeal accepted.