Full Judgment Text & Judicial Ruling

1991 P L C (C

1991 P L C (C.S.) 442

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

MUHAMMAD RAFIQUE

Versus

MUHAMMAD YUSUF BHATTI

Writ Petition No. 4278-S of 1981, heard on 23rd February, 1991.

West Pakistan Local Councils and Municipal Committees (Powers of Appointing Authority) Rules, 1965---

----R. 3----Dismissal from service---Petitioner was appointed as Peon in Octroi Department in the Municipal Committee although he was over-aged, dismissed employee of Canal Department and was guilty of misappropriation---Petitioner who was ultimately dismissed by Municipal Committee from Octroi Department, challenged order of his dismissal---Held, petitioner's appointment was not in accordance with law/rules, no doubt Municipal Committee had full power to appoint petitioner and relax age in special circumstances, which were to be recorded in writing, but neither petitioner gave his date of birth nor Municipal Committee adverted to the said question---Appointment of petitioner being not according to rules, same was not protected---Order of termination of service of petitioner was upheld and prayer of petitioner for reinstatement turned down.

Syed Jamshed Ali for Petitioner.

Nemo for Respondent.

Date of hearing: 23rd February, 1991.

JUDGMENT

The petitioner through this Constitutional petition has challenged the orders dated 30-12-1980 and 23-5-1981 passed by respondents Nos. 1 and 2 respectively.

2. The relevant facts are that the petitioner was appointed as Peon in the Octroi Department of respondent No. 1. The appointment letter is dated 1-12-1976. The petitioner was thereafter served with a show-cause notice dated 15-12-1980 as to why his services should not be terminated as he was over-aged, he was dismissed from Canal Department and that he has misappropriated sum of Rs.5.50 from the octroi account and as a result of which one increment was stopped. The petitioner was ultimately dismissed vide order dated 30-12-1980. The petitioner impugned this order through an appeal before respondent No. 2, who dismissed the same vide order dated 23-5-1981. Thereafter, the petitioner filed the present petition. The petition was admitted to regular hearing and notices were issued to the respondents but they have not appeared, therefore, proceeded ex parte.

3. The learned counsel for the petitioner in support of the petition argued that the petitioner remained in service for almost 4 years, therefore, respondent No. 1 has lost locus poenitentiae. In this behalf learned counsel has referred to the case of Abdul Hamid v. Director-General, Lahore Development Authority etc. 1990 P L C (C.S.) 553, Province of East Pakistan v. Dr. KA. Mansur and others P L D 1963 Dacca 211 and Liaqat Ali v. Chairman, Town Committee, Qila Sobha Singh 1983 P L C (C.S.) 831. It is added that the Municipal Committee was competent to make appointment and had full powers to relax the upper age limit. In this regard learned counsel for the petitioner has referred to West Pakistan Local Councils and Municipal Committees (Powers of Appointing Authorities) Rules, 1965. It is clear from the appendix that it was within the competency of the Committee to appoint the petitioner and it had full powers to relax age in special circumstances which were to be recorded in writing in each case. It is clear from the resolution of respondent No.1 approving the appointment of the petitioner as well as application placed on record as Annexure III that neither the petitioner gave his date of birth nor the Committee adverted to this question, therefore, the appointment is in violation of the rules. Now coming to the question whether the respondent No. 1 has right to repent. Since appointment is not in accordance with the rules, therefore, it is not protected and the same was rightly terminated. This is not all. The date of birth of the petitioner is 1930, therefore, main relief of reinstatement in the service cannot be allowed now.

The result is that this petition is dismissed with no order as to costs.

M.Y.H./M-2681/L ????????????????????????????????????????????????????????????????????????????? Petition dismissed.

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