P L D 2001 Supreme Court 1032 (PLP)

IRSHAD HASAN KHAN, C J.‑‑‑Through this common judgment we intend to dispose of Civil Petitions Nos.2215‑L of 2001 and 2259‑L of 2001 arising out of consolidated judgment dated 13‑6‑2001 passed by a learned Judge in Chambers of the Lahore High Court, Lahore in Writ Petitions Nos.21492 of 2001 and 21448 of 2000.

2. Facts and circumstances leading to this litigation are succinctly stated in paragraphs 2 to 9 of the impugned judgment which make the following reading: "

2. Writ Petition No.21492 of 2000 is by 28 officials out of which 8 are Assistant Subject Specialists, 12 are Junior Clerks/Clerks, 3 are Chokidars, 2 are peons, 2 are Data Entry Operators and one is driver. They were appointed in BS‑1 to

15. Writ Petition No.21448 of 2000 is by seven officials out of which 5 are Subject Specialists, one is Assistant Secretary while one is Public Relation Officer. They were appointed in B.S. 17. "

3. The writ petitioners in both the cases were appointed by the Chairman of the Board on the directives of the Education Minister, the Controlling Authority of the Board, issued in 1994 and 1995 on various dates. All these appointments were initially made on temporary basis. "

4. Under the orders of the Controlling Authority, a Scrutiny Committee comprising Professor Abdul Kabir Director (Humanities) of the Board (Convenor), Mr. Zia‑ud‑Din Chairman, Board of Technical Education, Mr. Zawar Hussain Sherazi, Director (Technical) of the Board and Ch. Muhammad Mushtaq Secretary, Board of Intermediate and Secondary Education, Faisalabad was constituted. They held deliberations on 9‑2‑1995, 7‑6‑1995 and 3‑8‑1995 and respectively approved 15, 34 and 18 officials for regularization which included the petitioners. This information was supplied to me by the learned counsel for the Board on the basis of the record. Pursuant to the recommendations of the aforesaid Scrutiny Committee the services of the petitioners were regularized and formal orders of appointment issued. This is no disputed. "

5. Apprehending termination of their services, Tariq Mehmood and 7 other employees of the Board, approached this Court in Writ Petition No. 17602 of 1995 in which the learned counsel for the Board appeared and made a statement that the said petitioners were regular employees of the Board who had no intention of terminating their services. Accordingly, this writ petition was disposed of on 20‑12‑1995. "

6. Again Tariq Mehmood and 10 others approached this Court in Writ Petition No.3789 of 1997 which was disposed of on 15‑3‑1999 with the following order: "

2. Learned counsel for the respondent Punjab Textbook Board, appearing in Court submits that the petition is premature; that presently the Board has no intention to terminate petitioners' services and in case the Board decides ~to pass any adverse order, they shall be given due notice and they shall be heard. Learned counsel for the petitioners is satisfied with the statement made and does not want to press this petition for the present which is disposed of as such." "

7. Thereafter, on 12‑6‑2000 show‑cause notices were issued to the petitioners in the two cases with the allegation that the appointments of the petitioners were prima facie contrary to the relevant provisions of West Pakistan Textbook Board Ordinance, 1962 and the Punjab Textbook Board Employees Service Regulations, 1980 as these were made for political consideration and without the posts being advertised. "

8. Both the sets of petitioners approached this Court in Writ Petitions Nos.12555 of 2000 and 11865 of 2000 challenging in the aforesaid show‑cause notices. These writ petitions were dismissed on 13‑10‑2000 with the following observations: 'For the order proposed to be made, I am not inclined to examine the respective contentions of the learned counsel for the parties on the merits of the controversy lest any prejudice is caused to either of the parties. The petitioners should submit replies to the show‑cause notices. They will be at liberty to raise all questions of law and fact before the competent Authority including the deliberations of the Scrutiny Committee, their recommendations and formal orders issued on the basis thereof regularizing services of a number of officials of the Board. The competent Authority shall duly consider all the pleas of law and fact of the petitioners taken in the replies to show‑cause notices, if filed by‑ the petitioners, and dispose of the matter with a speaking order'. " "

9. On 16‑10‑2000 the impugned orders were passed in individual cases by the Chairman, Textbook Board directing removal of the petitioners with immediate effect on the ground that their appointment and regularization was illegal, void, ab initio and of no legal effect. Against the said orders the petitioners filed departmental appeals before the Governor, Punjab and have also approached this Court to assail the said orders. A perusal of the show‑cause notices shows that the exercise was undertaken in pursuance of the ‑Letter of the Government of the Punjab bearing No. SO(Boards) Misc. /95; dated 6‑2‑1997."

3. Mr. Maqbool Elahi Malik, learned Advocate‑General, Punjab has vehemently contended that the then Minister for Education had no powers to appoint the employees and the appointments and conditions of service of the employees of the Punjab Textbook Board, Lahore are governed by the Punjab Textbook Board Employees Service Regulations, 1980. According to Regulations Nos. 11 and 13(2) the appointing Authority is the Chairman of the Board in respect of employees in BPS 1 to

16. Under section 9 of the Regulations the Minister is the Controlling Authority. However, he has nothing to do with the appointments. It was also contended that the learned Judge in Chambers has given reasons for retention of the respondents in service which are contrary to the provisions of West Pakistan Textbook Board Ordinance, 1962 (hereinafter referred to as the Ordinance). The justification given therein that prior to the appointments of the respondents some persons were also appointed without observing the requirements of law, is not a valid ground for retention of the respondents in service.

4. Hafiz Tariq Nasim, learned Advocate Supreme Court appearing on behalf of the respondents/caveators contended that all the nm ate respondents were appointed by the competent Authority i.e. the Chairman, Punjab Textbook Board, Lahore after examining their eligibility and determination of their suitability. Reliance is placed on page 43 of the Paper Book being para. 1 of the written statement filed by the Department in support of his contention that the Chairman made the appointments on the recommendations of the Minister. He also made a reference to page 49 of the Paper Book to contend that on the application of one of the respondent, Mr. Riaz Fatyana, the Minister of Education, only directed that the said applicant: may be appointed on ad hoc basis" and as the Minister was the Controlling Authority' having such powers as a delegatee of the Governor of the Punjab under section 9(4) of the‑0rdinance; the observations to the contrary in the impugned judgment cannot be sustained. He further argued that the competent Authority constituted a high powered scrutiny committee comprised of the Chairman and Directors of the Board, which determined the suitability of the respondents/caveators. After examining all the aspects of their cases, the said Committee recommended for their regularization, they were regularized and, since 1994 they are working without any complaint whatsoever. The High Court stayed proceedings proposed to be taken against the respondents/caveators 'show‑cause notices' issued by the Chairman for the purposes of termination of their services, but, during the pendency of the injunctive order, the respondents were removed from services although such course could be chartered by the petitioners only under the Efficiency and Discipline Rules, 1975. He referred to page 21 of the Paper Book/para. 24 of the impugned judgment to contend that the learned Judge in Chambers was quite right in observing that discriminatory treatment was meted out to his clients in that others similarly placed as then were let off. The learned Judge in Chambers also directed the petitioners to produce the record. This direction was complied with and it revealed that as many as 304 employees were appointed in the past without any advertisement in the Press and only 69 persons were appointed after advertising the posts. Hafiz Tariq Nasim also took the rostrum on behalf of petitioner in Civil Petition No.2259‑L of 2001 and contended that the learned Judge in Chambers was in error in holding that the petitioners were appointed by an incompetent authority i.e. 'Chairman' and not the Board, therefore, the orders were void ab initio. His clients' stand that the‑ Board did constitute a high‑powered scrutiny committee which assessed the eligibility, determined the suitability and retained them in service after a thorough probe, was vehemently reiterated by the learned counsel in this petition as well.

5. While exercising his right of reply in C.P.2215‑L of ‑2001 and appearing on behalf of the respondent-Board in C.P.2259‑L of 2001, the learned Advocate‑General argued that there does not exist any provision whatsoever in the constitution of so‑called 'scrutiny committee'. The precise plea was that the Chairman was possessed of the requisite powers to go ahead with the termination of the services of respondents in C.P.2215‑L of 2001 and petitioners in C.P.2259‑L of 2001 in accordance with the Ordinance.

6. It appears that the main thrust of the arguments of the learned Advocate‑General, Punjab is on the twin‑plea that the initial appointment/induction into service of the concerned employees being void ab initio, the termination of their services does not suffer from any taint in law whatsoever. Both sides are one on the point that the induction of the respondents/caveators in C.P. 2215‑L of 2001 and petitioners in C.P.2259‑L, I of 2001 was made on the recommendations of the‑then Education Minister 1, Punjab. The Education Minister by designation does not figure anywhere in the Ordinance or even in the Regulations. It is true that the Minister has been nominated by the Governor of the Punjab to exercise powers as Controlling Authority of the Board within the contemplation of section 8 or the Ordinance but the fact remains that he did not exercise his such powers as Controlling Authority in relation to the induction into service of the employees of the Board. It is not disputed that the appointments were made pursuant to the orders passed by the then Minister for Education and not by the competent Authority‑the Board‑in respect of appointments in BS‑17 and the. Chairman in case of employee in BS‑1‑15.

7. As regards plea of discrimination, suffice it to say that it is not squarely attracted in the cases of the private respondents/petitioners because they were not only appointed in violation of the rules regarding advertisements of the posts but also on the recommendations of the Minister for Education. The relevant record of the employees who were earlier appointed without advertisement of the posts, is not before us and it ‑ not even so much as alleged by Hafiz Tariq Nasim that they were also recommended by any person other than the competent Authority. The case of Sui Southern Gas Company Ltd. v. Engnieer Narain Das and others (2001 PLC (C.S.) 743) relied upon by Hafiz Tariq Nasim in support of plea of discrimination is not attracted to the facts and circumstances of these cases in that the appointees in the precedent case were not appointed in the manner in which the private respondents herein had been appointed i.e., under the orders of the Minister for Education.

8. Even the case reported as Administrator, District Council, Larkana and another v. Ghulam Khan and 5 others (2001 SCMR 1320) is also not attracted herein that in he said precedent the question of withholding of salaries of the employees was involved as their appointments were allegedly made in violation of the rules. We respectfully disagree with the dictum that the objection raised on behalf of the petitioners therein to the effect that the High Court has no jurisdiction to entertain the matter in relation to salary of the employees as it has a direct nexus with the terms and conditions of service of the employees in view of the bar imposed under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 was a technical objection. In our considered view the objection to the jurisdiction of the High Court to entertain a writ petition raised on behalf of the petitioners therein, was not technical in nature but going to the very root of the case. This Court has repeatedly held that the Service Tribunal alone is the appropriate forum having jurisdiction to deal with matters relating to the terms and conditions of service of civil servants in view of the bar contained in Article 212 of the Constitution. To this extent we respectfully overrule the above dictum.

9. Initial appointments to various grades can only be made in the manner laid down in section 11 of the Ordinance read with the Schedule annexed thereto. A bare reading of the‑ same shows that the Board is the Appointing Authority in BPS‑17 whereas the Chairman is the Appointing Authority in regard to the posts in BPS‑1‑‑15 and Minister for Education does not figure anywhere as Appointing Authority in respect of any post covered under section 11 read with the Schedule (ibid). It is true that the Minister for Education was a nominee of the Governor of the Punjab to act as Controlling Authority of the Board. It is also true that in terms of section 9(4) (ibid) where the Board does not take action to the satisfaction of the Controlling Authority within a reasonable time, the Controlling Authority may, after considering any explanation made by the Board issue such directions as it thinks fit and the Chairman shall comply with such: directions. The actions contemplated by the Controlling Authority within the ambit of sub‑clause (4) are laid down in clauses (1), (2) and (3) of section 9I (ibid). According to clause (1) the Controlling Authority shall have the, power to cause an inspection to be made by such person or persons as it may direct, of the offices, activities and funds of the Board and to cause an' enquiry to be made in like manner in respect of any matter concerning the I Board. Clause (2) empowers the Controlling Authority to communicate to the Board the result of such inspection or enquiry and may advise the Board to take such action within such period as may be specified. Clause (3) makes ii I obligatory upon the Board to report to the Controlling Authority the action as it proposes to take or has taken on such Communication. Clearly, the question to make initial appointment is not included in any of the provisions: contained in clauses (1), (2) and (3) of section 9, therefore, any direction issued in relation thereto is clearly beyond the scope of clause (4) (ibid). I Moreover, as the matter in relation to appointments in the Board has been dealt with/mandated specially in the Ordinance and the Schedule thereto, the said special provisions are to prevail over the general provisions. As such, we repel the contentions made by Hafiz Tariq Nasim to the contrary.

10. As to the alleged clearance/regularisation of the cases of the private respondents by the Scrutiny Committee, it will be enough to observe that there is neither any such provision in the Ordinance nor in the Service Regulations. Therefore, mere clearance of the cases of appointment by such Committee would not ipso facto validate those appointments which were void ab initio.

11. As regards the argument of Hafiz Tariq Nasim that all the appointees did not lack qualification for the posts to which they were appointed and the department having appointed them in violation of the rules cannot take benefit of its lapses by terminating their services, suffice it to say that one wrong does not justify another. Besides, such an approach is likely s to adversely affect the entire process of accountability of the persons concerned.

12. For the reasons stated above, we convert C.P.L.A. No.2215‑L of 2,001 into appeal and while allowing the same the impugned judgment is set aside and the Writ Petitions Nos.21448 of 2000 and 21492 of 2001 are dismissed.

13. Civil Petition No.2259‑L of 2001 is dismissed and leave declined.

14. Before parting with the case, it may be observed that the salaries and other benefits already drawn by the respondents/employees shall not be recovered. M.B.A./P‑37/S Order accordingly.