Full Judgment Text & Judicial Ruling

2008 P L C (C

2008 P L C (C.S.) 763

[Lahore High Court]

Before Hafiz Tariq Nasim, J

Ch. MUHAMMAD KHAN

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.3392 of 2007, heard on 26th March, 2008.

Punjab Civil Servants Act (VIII of 1974)---

----S. 13(1)---Re-employment Policy of Retired Government Servants, dated 11-3-2004---Constitution of Pakistan (1973), Art.199---Constitutional petition---Re-employment on contract basis---Legitimate expectants, rights of---Employee retired after attaining the age of superannuation and was re-employed as Principal of College on contract basis for two years, which contract was extended twice---Validity---Powers exercised in re-employment were colourable, basing on pick and choose, whims and modes---Element of transparency was missing in re-employment, which was sufficient ground for interference by High Court---No one could be benefited at the cost of legitimate expectants who had every right to contest--Apart from petitioner, there might have been certain others who were in the run for posting as Principal of the College through process of promotion etc. but all of them were denied their lawful right of consideration for promotion/posting---Order of re-employment of respondent which was an outcome of colourable exercise of powers was declared to be without lawful authority and was set aside---High Court directed that the post of Principal held by respondent would be treated as vacant which was to be filled in accordance with law and rules by competent authority, after considering all eligible persons including petitioner---Constitutional petition was allowed accordingly.

Nazir Ahmed Javed and Sajjad Hussain Naqvi for Petitioner.

Naeem Masood, Asstt. A.-G. Punjab for Respondents Nos.1 to 4.

Masood A. Malik for Respondent No.5.

Date of hearing: 26th March, 2008.

JUDGMENT

HAFIZ TARIQ NASIM, J.--- The facts leading to this writ petition are that Professor Maqsood-ul-Hassan Bokhari respondent No.5 attained the age of superannuation and was retired on 31-3-2004. However, he was re-employed on contract basis for a period of two years.

2. Interestingly, the period of contractual appointment of respondent No.5 was extended from 15-3-2006 to 30-3-2007 through another order and that too was passed in relaxation of the provisions of Re-employment Policy of the Government of the Punjab.

3. One Professor Muhammad Gulzar Ahmed filed Writ Petition No.13415 of 2006, which was dismissed vide order, dated 20-3-2007 and according to the learned counsel for the petitioner the same was dismissed on the disclosure of the departmental authorities that respondent No.5's tenure/contract period is going to be expired only after ten days i.e. 30-3-2007.

4. The moment the writ petition was dismissed, the respondent No.5 exerted political influence and got another notification issued in his favour on 29-3-2007 whereby his contract of appointment was further extended for two years with effect from 31-3-2007. The learned counsel for the petitioner submits that virtually the impugned action of the department is violative of re-employment policy issued by the Government of Punjab and even the relaxation in rules/policy in respect of respondent No.5 is against all canons of justice rather beyond the parameters of the said policy being a case of no hardship at all. Further submits that while passing the impugned order not even a single reason is mentioned which is a sufficient ground for the interference of this Court.

5. The learned counsel for respondent No.5 opposes the contentions of the learned counsel for the petitioner and submits that respondent No.5 is an expert in his field, put his blood to the institution, earned hundreds of thousands of rupees for the benefit of institute and as such the impugned orders whereby the contract was extended is to be upheld.

6. Arguments heard. Record perused.

7. It is an admitted position that respondent No.5 was retired from service long, long ago on attaining the age of superannuation. He was re-employed not only once but thrice. It is not understandable that how respondent No.5 is such an important expert without whom the Education Department or the institute cannot run smoothly.

8. Another important aspect of the matter is that it was specifically mentioned in Re-employment Policy of Retired Government Servants dated 11-3-2004 that section 13(1) of the Punjab Civil Servants Act, 1974 provides that a retired civil servant shall not be re-employed unless such re-employment is necessary in the public interest and it is further emphasized that:--

"No department or authority shall re-employ a retired Government Servant without placing his case before the Re-employment Board/Committee.

Re-employment shall only be made in very exceptional cases particularly where suitable officer to replace the retiring officer is not available and the retired officer is highly competent person with distinction in his professional field.

The period of re-employment shall not exceed three years."

9. Viewing from all angles the re - employment of respondent No.5 is virtually against the policy of the Government of Punjab and the instructions issued which otherwise have force of rule and law.

10. The departmental representative who is present in the Court could not deny that before giving re-employment to respondent No.5 his case was not presented before the Provincial Re-employment Board.

11. It is also not disputed that no other suitable officer was available in the department who could replaced to the respondent No.5.

12. It is also an admitted position that the time stipulated in the Re-employment Policy i.e. three years has already been expired in case of respondent No.5's re-employment.

13. Virtually the powers exercised in the impugned matter was a colourable, basing on pick and choose, whims and modes and the element of transparency is missing, which is a sufficient ground for the interference by this Court.

14. It is well-settled law that no one can be benefited at the cost of legitimate expectants who have every right to contest, whereas in the present controversy apart from the petitioner there might be certain others who are in the run for posting as Principal through the process of promotion etc. but all of them have been denied their lawful right of consideration for promotion/posting. As discussed 'above, the impugned order of re-employment of respondent No.5 which is an outcome of colourable exercise of powers is declared to be without lawful authority and is set aside.

15. The post of Principal held by respondent No.5 shall be treated as vacant, which is to be filled within two weeks strictly in accordance with law and rules by the competent authority, after considering all eligible persons including the petitioner.

The writ petition is allowed in the above terms.

M.H./M-41/L Petition allowed.

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