Rule 17-A Decision Governor Punjab w.e.f. 24.07.2024

Rule 17-A Decision Governor Punjab w.e.f. 24.07.2024

OFFICE MEMORANDUM

Subject: Rule 17-A Decision Governor Punjab

This Order will dispose of the representation of Mr. Zia Mohy-ud-Din S/o Riaz

Hussain, R/o Muzaffargarh, preferred under Section 32 of the Punjab Office of the Ombudsman Act, 1997, against the Order of the Ombudsman Punjab dated 02.12.2022, passed in Complaint No.POP22MZF0016427.

2. Mr. Zia Mohy-ud-Din (Representation), filed a complaint before the Ombudsman that his father namely Mr. Riaz Hussain died during service while serving as Drawing Master (DM) in Shehar Sultan High School. He submitted various applications to the Chief Executive Officer (CEO), District Education Authority (DEA), Muzaffargarh (Respondent Agency) for his appointment as Junior Clerk under Rule 17-A. He further stated that he obtained good marks in typing test as well as in the final interview but the Agency did not issue his appointment orders despite passing the typing test @ 25 words per minute requirement. The Agency made an excuse of non-availability of posts ignoring the fact that he stood at number five (05) in the final merit list. He requested the Ombudsman to pass directions to the Respondent Agency for issuance of his appointment order as Junior Clerk under Rule 17-A.

3. Chief Executive Officer (CEO), District Education Authority (DEA), Muzaffargarh (Respondent Agency), reported to the Ombudsman Punjab that the Agency published an advertisement in Daily Pakistan newspaper dated 22.07.2022 and invited applications for appointment against the posts of Junior Clerk under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service), Rules 1974. It was further stated that a total 47 applications were received, including the Representation, for appointment under Rule 17-A out of which 41 candidates appeared for typing test and interview before the Recruitment Committee. Only ten (10) candidates including the Representations could pass the required typing test. It was added that only three (03) posts of Junior Clerks were lying vacant under Rule 17-A which have been filled in upon the recommendations of the Recruitment Committee. As per merit list dated 22.08.2022, first three (03) candidates have been appointed by the Agency. The Representationstood at number four (04) in the merit list, hence, his appointment order could not be issued, being lower in merit.

4. The Ombudsman noted in his decision that as per report of the Respondent Agency, the Representation acquired 56 marks in the recruitment process which are less than the appointed candidates, therefore, he was not appointed as Junior Clerk under Rule 17-A being lower in merit. Further, a copy of merit list available on record strengthens the stance of the Respondent Agency. Consequently, no maladministration on the part of the Respondent Agency was established for not appointing the Representationist as Junior Clerk under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The Ombudsman, therefore, disposed of the complaint under Regulation 17(b) of the Ombudsman for the Province of Punjab (Registration, Investigation and Disposal of Complaints) Regulations, 2005, accordingly.

5.Mr. Zia Mohy-ud-Din (Representation), feeling aggrieved by the order of the Ombudsman, has filed the instant representation, reiterating his previous stance and, inter alia, stating that total 29 posts of Junior Clerk (BS-11) are available in the district as per website of Punjab School Information System but the Respondent Agency is not willing to make appointment against the same. He has requested for redressal of his grievances.

6. I have gone through the record of the case including written reply / comments of the Respondent Agency and rejoinder of the Representation. Perusal of the available record reveals that the instant matter pertains to the appointment of the Representation under Rule 17-A. In this regard, Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 states as below:

“Notwithstanding anything contained in any rule to the contrary, whenever a civil servant dies while in service or is declared invalidated/incapacitated for further service, one of his unemployed children or his widow / wife may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualification and experience and such child or the widow/wife may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee provided he/she otherwise qualifies in the test/examination and/ or interview for posts in BS-6 and above.

Provided further that only one child or widow or wife of an employee who dies during service or is declared invalidated or incapacitated for further service, if otherwise eligible for the post, shall be appointed to a post in BS-1 to BS-11 in the department where the Government servant was serving at the time of the

death or the declaration, without observance of the procedural requirements prescribed for such appointment.”

The aforementioned Rule clearly provides for facilitation of job to one child or widow/wife of a Civil Servant who dies while in service or is declared invalidated / incapacitated for further service without observance of formalities prescribed under Rules / procedure except eligibility under respective Service Rules. It is to be noted that the Respondent Agency initiated the appointment process for recruitment against three (03) posts of Junior Clerk (BS-11) under Rule 17-A ibid by publishing an advertisement in the newspaper which was not required at all under the Rule ibid. It goes without saying that procedural formalities were not required in the instant case except eligibility requirements under the respective Service Rules. The Respondent Agency should have only taken the typing test of the candidates and ensured that they fulfilled the eligibility criteria for appointment against the said posts.

It is also noted that the Respondent Agency adopted a self-devised criteria / mechanism for calculation of merit which is neither provided under any rule / policy nor does the same hold any rationale. As per advertisement published by the Agency, minimum qualification was mentioned as F.A/F.S.C. (Second Division), whereas, no marks were assigned against the requisite qualification in the final merit. Moreover, typing speed of minimum 25 words per minute (wpm) as well as passing the proficiency test and interview were reflected in the advertisement without assigning any weightage. Astonishingly, typing speed in wpm of the candidates was directly converted into marks obtained without any maximum limit. This state of affairs reflects unawareness of the officers of the Respondent Agency with the relevant rules/procedure. Unequivocally, all the formalities adopted by the Agency as well as criteria devised for calculation of final merit is not covered under any rule / policy for appointment under Rule 17-A of the Rules ibid.

7. Perusal of the available record further reveals that the contention of the Representationalist is tenable to the extent that a number of posts of Junior Clerk (BS-11) are lying vacant in the Respondent Agency as per vacancy position provided by the Agency. However, the Respondent Agency has argued that the thirty six (36) available posts, which are lying vacant in the Agency, are reserved for different quotas as per below mentioned detail:

8. It is pertinent to mention here that a clarification was sought on the subject matter and as per advice furnished by the Regulations Wing, Services & General Administration Department vide No. SOR-III(S&GAD)8-2/2023 dated 06.12.2023, appointment under Rule 17-A is to be made against the posts meant for initial recruitment. The same cannot be made against any post meant for reserved quotas i.e; Women Quota, Minority Quota, Disabled Quota etc. Moreover, the posts against various quotas are to be calculated against the total sanctioned strength of a cadre and shall be filled in only during initial recruitment. Hence, stance of the Respondent Agency seems tenable to the extent that the Representationist cannot be appointed against the posts available for various reserved quotas.

The Regulations Wing, S&GAD further opined that appointment under Rule 17-A is required to be made without observance of procedural requirements prescribed for such appointment, hence, advertisement, constitution of selection committee etc are not needed in such cases. Merely the eligibility criteria of the post, against which appointment is required to be made, need to be possessed by the incumbent. In the light of aforementioned clarification, it can safely be inferred that the Respondent Agency erroneously adopted the procedural formalities in the instant case which are not backed by any rule / policy. Also, the self-devised criteria / formula for calculation of merit speaks volumes of the unawareness of the relevant officials of the Agency on the subject matter.

9. It transpires from the record that the Ombudsman overlooked the aforementioned aspects of the case and adjudicated that the appointment process was carried out by the Agency on merit. The Ombudsman further held that no maladministration was pointed out on the part of the Agency during the recruitment process as per merit list provided by the Agency. The Ombudsman glossed over the fact that the procedural formalities were not required in the instant case at the first instance. Moreover, the self-devised formula / criteria for calculation of merit was arbitrarily adopted by the Agency as the same was not provided under any rule / policy. It is imperative to note that the Agency should have tested the candidates only against the eligibility criteria prescribed against the posts of Junior Clerk (BS-11). Appointment Orders in respect of the eligible candidates should have been issued against the available seats keeping in view the date of submission of applications by the candidates

i.e; on first-come-first-serve basis. Without prejudice to what has been stated above, it is noted that stance of the Respondent Agency is tenable to the extent that only the candidates fulfilling the minimum eligibility criteria have been appointed under Rule 17-A against three (03) vacant posts of Junior Clerk. Moreover, the Representation cannot be appointed against the posts reserved for various quotas. It is also to be noted that the Government of the Punjab, Services and General Administration Department (Regulations Wing), Lahore vide its Notification No. SOR-III(S&GAD)2-60/2024 dated 24.07.2024 had omitted the provision of Rule 17-A from the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. However, this notification has been implemented with immediate effect and not from retrospective effect. Therefore, omission of Rule 17-A will not prejudice the rights of parties that accrued under Rule 17-A before 24.07.2024 and facility of provision of employment under Rule 17- A will continue to exist for legal heirs of those who died while in service or declared invalidated/ incapacitated for further service before 24.07.2024.

10. Keeping in view the aforementioned facts of the case, the relevant provisions of Rule 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 and the advice tendered by the Regulations Wing, S&GAD dated 06.12.2023, it can safely be deduced that the Respondent Agency erroneously adopted the procedural formalities for appointment under Rule 17-A and also adopted a self-devised criteria / formula for calculation of final merit which is not covered under the relevant rules. Nevertheless, it is also noted that the candidates appointed by the Respondent Agency under Rule 17-A otherwise possessed the minimum requirement / eligibility criteria prescribed under the rules for appointment against the said posts, hence, they cannot be penalized at this belated stage for the irregularities committed by the Respondent Agency during the appointment process. Moreover, the contention of the Representationist regarding appointment under Rule 17-A against the posts reserved for various quotas does not hold water.

However, his right of appointment under Rule 17-A against the available posts meant for initial recruitment remains undeniable subject to fulfillment of his eligibility under the rules. Under these circumstances, the Chief Executive Officer (CEO), District Education Authority (DEA). Muzaffargarh is directed to prepare a list of candidates waiting for appointment under Rule 17-A preferably in a chronological order as per their date of submission of applications and ensure that the eligible candidates, including the Representation are appointed against the available posts under the relevant law rules on first-come-first-serve basis. Furthermore, the Secretary, Government of the Punjab, School Education Department is directed to depute an inquiry officer to conduct a thorough inquiry regarding the irregularities committed by the Representation Agency in appointing the candidates under Rule 17-A, fix responsibility against the delinquents and take strict disciplinary action under the relevant rules / laws. It is also to be noted that in future all the cases pertaining to appointment of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 be dealt on the analogy of this case where right of appointment under Rule 17-A had already been established prior to issuance of Notification of Services and General Administration Department (Regulations Wing) vide Notification No. SOR-III(S&GAD)2- 60/2024 dated 24.07.2024 as this notification is not applicable from retrospective effect but w.e.f 24.07.2024. Hence, there is merit in the instant representation and the Order of the Ombudsman Punjab warrants interference.

11. For what has been stated above, this representation stands disposed of and the Order of the Ombudsman Punjab is set aside in aforementioned terms. Parties to the case be informed, accordingly.