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Writ Petition No.2186 of 1986, decided on 4th February, 1987.

West Pakistan Local Councils and Municipal Committees (Powers of Appointing Authorities) Rules, 1965‑‑

‑‑‑R. 46‑‑Appointment of Chungi Muharrir‑‑Upper age limit‑‑Relaxation of‑‑Effect‑‑Petitioner otherwise fully qualified to be appointed as Chungi Muharrir was overage, but was given conditional appointment subject to relaxation of age by competent authority‑‑Divisional Commissioner being competent authority after according sanction for relaxation of upper age limit of petitioner, duly regularised his provisional appointment‑‑Service of petitioner, held, could not be terminated on ground that he was ineligible candidate as he had not got his upper age relaxed by competent authority before final date of receipt of applications‑‑Contention that post relaxation of age limit by competent Authority could not validate appointment of petitioner was repelled in circumstances of case.

M . D . Tahir for Petitioner.

Muhammad Rafiq Khan Chohan for Respondents.

Date of hearing: 4th February, 1987.

Ijaz Muhammad, petitioner herein, by means of this Constitutional petition has assailed the validity of orders dated 27‑7‑1985 and 3‑5‑1986 of the Chairman, Town Committee, Sillanwali, and Deputy Commissioner, Sargodha respectively, whereby his appointment as Chungi Moharrir, Sillanwali earlier made on 9‑9‑1984 by the Chairman, Town Committee, Sillanwali as set aside by respondent No.l and petitioner appeal against that order was dismissed by respondent No.2.

2. The relevant facts giving rise to this petition are that the petitioner and other candidates applied for three vacant posts of Chungi Moharrirs advertised by the Chairman, Town Committee, Sillanwali in the newspaper. The petitioner and two other candidates namely Muhammad Yasin and Muhammad Sarwar were selected on the basis of the interview and written test. The petitioner being overage on the relevant date was given conditional appointment subject to relaxation of his age by the competent authority (Divisional Commissioner, Sargodha). The Commissioner vide his order dated 3‑11‑1984 accorded sanction for relaxation of upper age limit of the petitioner and his appointment was regularised.

3. Muhammad Saleem, one of the candidates, who was not selected, challenged by way of appeal, the appointment of the petitioner and two others as Chungi Moharrirs. His appeal was accepted by the Deputy Commissioner, Sargodha of 12‑11‑1984 without hearing the petitioner and two others.

Aggrieved by the aforesaid orders the petitioner and two others filed W.P.No.5249 of 1984 in this Court, which was accepted on 27‑3‑1985, the impugned order dated 12‑11‑1984 of the Deputy Commissioner set aside and the case was remanded to him for fresh decision.

It is significant to point out that during the pendency of the appeal before the Deputy Commissioner, the Town Committee, Sillanwali appointed Muhammad Saleem, on 7‑5‑1985 against same post and on 26‑5‑1985, he withdrew his appeal, against order of the appointment of the petitioner and two others. It appears that pursuant to some audit objection, and without being conscious of the fact, that the order dated 12‑11‑1984 of the Deputy Commissioner, having been set aside by this Court, the Chairman, Town Committee, on 27‑7‑1985 terminated petitioner's services. The petitioner challenged that order in appeal before the Deputy Commissioner and also filed W . P. No. 3387 of 1985, in this Court. The writ petition was admitted to regular hearing by this Court on 8‑10‑1985 and the operation of the impugned order passed by the Chairman, Town Committee, Sillanwali was suspended in the meantime. The petitioner since simultaneously had challenged the aforesaid order of the Chairman, Town Committee in appeal, before the Deputy Commissioner, Sargodha, the writ petition was dismissed on the ground that he has availed of the alternate remedy in appeal before the Deputy Commissioner, Sargodha, Petitioner's appeal was also dismissed on 3‑5‑1986 by respondent No.2. Hence this petition.

4. Learned counsel for the petitioner pointed out that petitioner in F.A. and perhaps on other candidate possessed this qualification. The Chairman, Town Committee, Sillanwali on 9‑9‑1984 appointed him subject to the relaxation of his age by the competent authority as contemplated under amended para. 46 of the West Pakistan Local Councils and Municipal Committee (Powers of Appointing Authorities) Rules, 1965. The upper age limit having been relaxed by the Divisional Commissioner his appointment as Chungi Moharrir would be deemed to have been validated from the day it was made.

5. Learned counsel appearing on behalf of the Chairman, Town Committee, Sillanwali (respondent No. l) on the other hand, contended that the petitioner was in eligible candidate and his age limit ought to have been relaxed by the competent authority before final date of the receipt of applications for the posts, as such post‑relaxation of age limit by the Divisional Commissioner, could not validate his appointment as Chungi Moharrir.

6. I have considered the contentions raised by learned counsel fore the parties and have perused the documents on the file. Admittedly the Selection Committee considered the petitioner on the basis of his, qualification, test and interview to be a suitable candidate for appointment as Chungi Moharrir. The appointment order shows that it was made subject to relaxation of his age limit by the Commissioner, Sargodha Division, who admittedly relaxed his upper age limit and thus regularised his provisional appointment. The Government of the Punjab, in Local Government and Rural Development Department, vide notification dated 15‑4‑1982, made amendment in the West Pakistan Local Councils and Municipal Committees (Powers of Appointing Authorities) Rules, 1965, in their application to the Province of Punjab, empowering the Divisional Commissioner to relax the upper age limit prescribed in the relevant rules upto eight years. The Commissioner was, therefore, competent authority in the case of the petitioner to relax his upper age limit. It has not been controverted by the respondent No.1 that in the relevant advertisement made in the newspaper there was no direction that overage candidate would obtain relaxation of upper age limit by the competent authority, before the last date of the receipt of the petitioners. The order of the Deputy Commissioner dated 12‑11‑1984 passed in the appeal filed by Muhammad Saleem, was no more operative in the field having been set aside by this Court on 27‑3‑1985 in W.P. No. 5249 of 1984. Muhammad Saleem did not pursue his appeal against the order of petitioner's appointment and thus, order dated 9‑9‑1984, passed by the Chairman, attained finality. The Chairman (probably successor‑in‑office) had no jurisdiction to terminate petitioners services on the strength of order dated 12‑11‑1984 of the Deputy Commissioner, which was set aside by this Court.

7. For the foregoing reasons the impugned order passed by the Chairman, Town Committee, Sillanwali and maintained in appeal by the Deputy Commissioner, Sargodha terminating petitioners services as Chungi Moharrir are declared to be of no legal effect.

In the result this petition is accepted with no order as to costs.

H. B. T. /1‑3/L Petition accepted.

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