2018 PLP (C (PLC(CS)N)
NEMAT ULLAH Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Workers Welfare Board, Peshawar and 3 others
| Citation | 2018 PLP (C (PLC(CS)N) |
| Forum / Court | Peshawar High Court |
| Bench Members | Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ |
| Parties | NEMAT ULLAH Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Workers Welfare Board, Peshawar and 3 others |
| Primary Law | Workers' Welfare Fund (Employees Service) Rules, 1997 |
Q1: What are the key laws and sections cited in 2018 PLP (C (PLC(CS)N)?
This judgment primarily cites: Workers' Welfare Fund (Employees Service) Rules, 1997 as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP (C (PLC(CS)N)?
The case was heard and decided by the Peshawar High Court bench comprising: Waqar Ahmed Seth and Muhammad Younis Thaheem, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP (C (PLC(CS)N) (NEMAT ULLAH Versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Workers Welfare Board, Peshawar and 3 others). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ghulam Nabi, Mumtaz Ahmad, Asif Yousafzai, Zartaj Anwar, Khalid Rehman Qureshi, Arshad Khan Tanoli, Tanveer Ahmad Mughul, Hamayoun Khan, Pir Hamidullah Shah, Muhammad Ijaz Khan Sabi, Barrister Mian Tajamul Shah, Syed Umar Ali Shah, Ishtiaq Ahmad Khan, Nasrullah Jan Khan, Burhan Latif Khaisori, Bashir Khan Wazir, Faridullah Kundi, Qaisar Hussain for Petitioners and some petitioners in person.
- Syed Haziq Ali Shah, Jehanzeb Mehsood and Safiullah Wazir along with Said Umar Khan Assistant Director Legal WWB, KPK, Peshawar, Jamshaid Iqbal Khan Law Officer, WWB KPK, Peshawar for Respondents.
- 5. Learned counsel for petitioners vehemently argued that initially petitioners were appointed on contract basis after fulfillment of prescribed procedure of Workers Welfare Fund (Employees Service) Rules, 1997, both in teaching and non teaching cadres, their academic records were then properly scrutinized. After joining duties and rendering services their contracts were extended and afterward some petitioners who were on contract basis were regularized. Learned counsel for petitioners added that some of petitioners have been terminated when they were under probation, some petitioners were promoted but were not assigned job on the promoted posts and were demoted after promotion to the lower grade on unfounded reasons with allegation of poor performance, un-authorized appointment, even without assigning any reason. All the petitioners have been terminated in violation of Workers Welfare Fund (Employees Service) Rules, 1997, without serving any show cause notice and without conducting an inquiry against them. So, prayed that their terminations orders are based on mala fide, without lawful authority against law as they were on job since their appointment for so many years, so great injustice has been done to the petitioners. In this respect the learned counsel for petitioners placed their reliance on 1996 SCMR 1205, 2009 SCMR 194, 1997 SCMR 1205, 1997 SCMR 1552, 1997 PLC (C.S.) 873, 2008 SCMR 598, 2009 SCMR 412, 2004 SCMR 303, 2000 SCMR 643, 2005 SCMR 85 and 2009 SCMR 412.
- 6. On the other hand the learned counsel for respondents argued that the petitioners were appointed beyond the required strength of staff without observing legal formalities and in their appointment orders clause IV is quite clear vide which the respondents have the authority to terminate the services of appointees even during probation without assigning any reason. They added that the petitioners who have 3rd division in BA were appointed, therefore, services of such employees have correctly been terminated as in such like cases, there is no need of assigning any reason. Regularization of employees of Board does not confer any right upon employees that they cannot be proceeded if otherwise their appointments are found based on irregularities and against the rules. Lastly they submitted that this Court has got no jurisdiction. In this respect they placed reliance on the judgment of Hon'ble Supreme Court cited 2016 SCMR 1299, Civil Review No.246/2016 in C.A No.1109/2013, decided on 18.10.2016 titled as Secretary Welfare Board Khyber Pakhtunkhwa v. Naimatullah and others, Worker Welfare Fund Ordinance, 1971, Worker Welfare Fund (Employees Service) Rules, 1997 and Minutes of the meeting No.81st of Board.
- 11. Learned counsel for respondents during arguments and in their comments reiterated that appointing authority while making appointments of petitioners not only violated the appointment rules but committed different irregularities and due to their wrong decision over staffing by way of appointments of petitioners was made, as there were so many lapses on the part of appointing authority due to which the services of petitioners were terminated. This argument in view of law laid down by Hon'ble Supreme Court in case cited as 2014 SCMR 303 is not acceptable as it has no footing and is unfounded as the Hon'ble Supreme Court for and again has held that appointees cannot be penalized, who have been appointed allegedly without following the rules or on irregular basis. In such like circumstances it has been held that it is the appointing authority to be proceeded against and not the appointees who have served the department for a long period of time. In the cited case, of similar like situation the Hon'ble Supreme Court laid down the following rules.
- 14. So far as the arguments advanced by learned counsel for respondents regarding legal bar on invoking constitutional jurisdiction of this Court is concerned, suffice is to say that the petitioners are not civil servant and are employees of the "Board" which is autonomous body, distinct entity and having Statutory Rules of 1997. Moreover, in identical nature of cases cited as 2007 SCMR 682, Hon'ble Supreme Court enunciated the following principle distinct in nature where in the matter in question was of promotion and objection regarding bar of jurisdiction under Article 212 of the Constitution was raised which was repelled. The rule enunciated is reproduced as below:-
- "That question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acted in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on it, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong---Hon'ble Supreme Court declined to agree with the learned counsel for petitioner that it was not a fit case for interference by the High Court in exercise of constitutional jurisdiction---High Court has not substituted it for the act of authorities, therefore such plea was preposterous and not relevant leave was refused."
Headnotes / Summary
Workers Welfare Board
Termination without following procedure for removal from service
Irregular appointments
Effect
Locus poenitentiae, principle of
Back benefits
Authorities terminated services of contract employees without issuing any show-cause notice and conducting of inquiry
Employees were appointed observing the prescribed manner
When someone was appointed after fulfilling required criteria and appointment was made in prescribed manner then service of such employee could only be terminated after following the law governing procedure for removal from service
If said procedure was not followed, termination order would be ultra vires, ab initio void, in violation of law and without lawful authority
No one could be condemned unheard
No reason had been given for termination orders
When an employee had assumed the charge and performed his duties then he could not be terminated without assigning valid reasons after fulfilling procedure prescribed under the rules
Termination during probationary period was not tenable
Persons who had been appointed allegedly without following the rules or on irregular basis could not be penalized
Appointing authority in such circumstances was to proceed against the officials who were responsible, and not the appointees who had served the department for a long period of time
Statutory bodies were to act in accordance with law
In the present case, contract of employees had been extended and their services had been regularized
Once competent authority had regularized service of employee it created valuable right in favour of that employee which could not be reversed by taking contradictory stances at different times
Appointing department could not approbate and reprobate in the same breath with regard to the same matter
Termination orders passed by the department were in violation of rules envisaged in Workers' Welfare Fund (Employees Service) Rules, 1997
If rules and laws were not followed then termination order would be without lawful authority and constitutional petition would be maintainable
Impugned orders were set aside
Employees were directed to be deemed in service from the date of judgment
No salaries would be paid to the employees as they had not served the department
Constitutional petition was allowed in circumstances. [paras.9, 10, 11. 12, 13, 15 & 16 of the judgment] [Case-law referred].
Judgment & Decree
MUHAMMAD YOUNIS THAHEEM, J.
Through this single judgment this and connected writ petitions i.e. W.P. No.2062-P/2013, W.P. No.2729-P/2013, W.P. No.296-A/2013, W.P. No.1702-P/2014, W.P. No.1832- P/2014, W.P. No.3-M/2015, W.P. No.92-A/2015, W.P. No.94-A/2015, W.P. No.188-A/2015, W.P. No.195-B/2015, W.P. No.397-D/2015, W.P. No.411-D/2015, W.P. No.422-D/2015, W.P. No.431-D/2015, W.P. No.637-B/2015, W.P. No.667-B/2015, W.P. No.668- B/2015, W.P. No.669-B/2015, W.P. No.672-B/2015, W.P. No.687-D/2015, W.P. No.851-D/2015, W.P. No.881-A/2015, W.P. No.159-B/2014, W.P. No.20-B/2016, W.P.No.21-B/2016, W.P.No.22-B/ 2016, W.P. No.23-B/2016, W.P. No.60-B/2016, W.P. No. 65-B/ 2016, W.P. No. 104-D/2016, W.P. No. 180-B/2016, W.P. No. 201-A/2016, W.P. No. 202-D/2016, W.P. No. 203-D/2016, W.P. No. 228-D/2016, W.P. No. 258-D/2016, W.P. No. 262-B/2016, W.P. No. 302-B/2016, W.P. No. 378-B/2016, W.P. No. 379-B/2016, W.P. No. 380-B/2016, W.P. No. 381-B/2016, W.P. No. 382-B/2016, W.P. No. 383-B/2016, W.P. No. 392-B/2016, W.P. No. 393-B/2016, W.P. No. 394-B/2016, W.P. No. 395-B/2016, W.P. No. 398-B/2016, W.P. No. 399-B/2016, W.P. No. 445-A/2016, W.P. No. 494-B/2016, W.P. No. 502-D/2016, W.P. No. 509-B/2016, W.P. No. 790-B/2016, W.P. No. 945-B/2016, W.P. No. 979-D/2016, W.P. No. 2167-P/2016, W.P. No.3721-P/2016, W.P. No.4736-P/2016, W.P. No.78-D/2017, W.P. No.97-B/2017, W.P. No.156-B/2017, W.P. No. 243-D/2017, W.P. No. 515-P/2017, W.P. No.1078-P/2017, W.P. No. 1079-P/2017, W.P. No. 1274-P/2017, W.P. No.1388-P/2017, W.P. No.1533-P/2017, W.P. No. 1750-P/2017, W.P. No.3284-P/2017, W.P. No.359-B/2016, W.P. No. 525-D/2015, W.P. No.377-B/2016 and W.P. No.2230-P/2017, having common questions of facts and law so, are decided through this common judgment.
2. Brief facts of above mentioned writ petitions from serial No.1 to serial No.75 are that petitioners upon their respective qualifications applied for the posts mentioned below in the table as well as in their petitions in response to related advertisements and the Workers Welfare Board (hereinafter called Board) after following all codal formalities including test and interview, selected the petitioners who were appointed against relevant posts in the Working Folks Grammar Schools in the Province of Khyber Pakhtunkhwa as Principal in BPS-18, Teachers in BPS-14, Subject Specialists in BPS-17, Junior Instructors in BPS-14, Drivers in BPS-4, Sanitary Workers in BPS-2, Care Takers in BPS-9, Junior Clerks in BPS-7, Naib Qasid in BPS-2, EST in BPS-9, Class-IV in BPS-2, Library Attendants in BPS-5, Lecturer in BPS-17 and Vice Principal in BPS-17, initially on contract basis for 03 years which period was further extended in their respective Districts mentioned in their respective writ petitions. The petitioners were appointed duly by the then competent authority and in this respect appointment orders for their respective posts were issued, detail of which has been mentioned in their respective writ petitions. The petitioners after appointments fulfilled other required codal formalities, started performing their duties. Directorate of Education, WWB of Khyber Pakhtunkhwa, Peshawar paid them salaries regularly. The services of petitioners who were previously performing their duties on contract basis were afterward regularized through various orders of the competent authority, thereafter respondents without serving any show-cause notice and without conducting any inquiry, terminated their services on different reasons i.e. poor performance during probation, not qualified for the post against which they were regularized, due to having 3rd division in BA, and on the ground that their services are no more required to the department, either those were on probation or on contract basis or regularized employees. The detail of termination with reasons mentioned in their respective petitions is briefly given in the table. So the petitioners feeling aggrieved filed petitions mentioned in the following table with brief facts as to appointment, post, status and reason for termination. S. No. Petition No and Titled Qualification, Post and Pay Scale Date of Appointment Contract/ Regularized Reason for Termination 1 W.P No.1392-P/2016 Naimat Ullah v. Govt: MA and M.Ed, Principal in BPS-18 21.01.2013 Contract Poor Performance in probation. 2 W.P No.2062-P/2013, Muhammad Arshad v. Govt: MA, B.Ed, Teacher in BPS-14 15.06.2010 Regularized not qualified for the post 3 W.P No.2729-P/2013, Miss Asfa Gul v. Govt: Teacher in BPS-14 17.07.2012 Contract no more required 4 W.P No.296-A/2014, Nazli Kanwal v. Govt: MA.B.A,B.Ed, F.A (CT), Teacher in BPS14 27.09.2012 Contract not authorized for the same 5 W.P No.1702-P/2014, Zafrullah v. Govt: Teacher in BPS-17 12.11.2013 regularized without any reason 6 W.P No.1832-P/2014, Matiullah v. Govt: M.A/B.Ed, Principal in BPS-18 21.01.2013 Regularized poor performance and embezzle-mentt 7 W.P No.3-M/2014, Murad Ali etc v. Govt: Teacher in BPS-14 20.02.2012 Contract no more required 8 W.P No.92-A/2015, Hina Bukhari v. Govt: Teacher in BPS-14 31.03.2012 Contract poor performance and 3rd division in BA 9 W.P No.94-A/2015, Lubna Arfan v. Govt: M.A, Teacher in BPS- 14 21.01.2013 Contract no more required 10 W.P No.188-A/2015, Muhammad Fahad Saeed v. Govt. Teacher in BPS-14 01.10.2012 Contract appointment without authority 11 W.P No.195-B/2015, Ihsanullah v. Govt: Principal in BPS-18 21.01.2013 Contract without any reason 12 W.P No.397-D/2015, Samiullah v. Govt: Subject Specialist Economics in BPS-17 21.01.2013 Contract terminated in probation period 13 W.P No.411-D/2015, Muhammad Farooq v. Govt: Naib Qasid in BPS-2 07.03.2012 Contract as per clause IV of his appointment order 14 W.P No.422-D/2015, Asadullah Anwar v. Govt: M.A, B.Ed, Elementary Teacher in BPS-14 01.10.2012 Contract appointment without authority 15 W.P No.431-D/2015, Miss Nabeela Rahman v. Govt: B.A, M.A (Urdu) ,Teacher in BPS-14 28.09.2012 Contract on the ground of long absence 16 W.P No.637-B/2015, Najeebullah etc v. Govt: Superintendent in BPS-16 21.01.2013 Contract appointment letter signed by other than secretary 17 W.P No.667-B/2015, Waheed Khan v. Govt: BSC ad B.Ed, Teacher in BPS-14 06.02.2012 Contract Irrelevant Qualification 18 W.P No.668-B/2015, Mohammad Khalil v. Govt: M.A, B.Com, B.A Additional and B.Ed, Teacher in BPS-14 08.03.2012 Contract Irrelevant Qualification 19 W.P No.669-B/2015, Zaib Ullah v. Govt: Principal in BPS-17 14.01.2013 Contract no more required 20 W.P No.672-B/2015, Abdul Jamal etc. v. Govt: Teacher in BPS-14 22.03.2012, 02.02.2012 and 27.08.2012 Contract Irrelevant Qualification 21 W.P No.687-D/2015, Muhammad Tahir Shah Junior Instructor in BPS-14 16.05.2012 Contract termination in probation period 22 W.P No.851-D/2015, Muhammad Jamil v. Govt: Driver in BPS-4 02.02.2012 Contract no more required 23 W.P No.881-A/2015, Shafiq-ur-Rehman v. Govt: BBA (Hons) with B.Ed, Elementary Teacher in BPS-14 15.02.2012 Contract as per clause IV of his appointment order 24 W.P No.159-B/2014, Miss Nazia Jehan etc. v. Govt: Teacher in BPS-14 21.01.2013 Contract without any reason 25 W.P No.20-B/2016, Muhammad Ullah v. Govt: Junior Instructor in BPS-14 31.10.2011 Contract poor performance 26 W.P No.21-B/2016. Mst. Rohi Kalsoom v. Govt: Teacher in BPS-14 16.07.2012 Contract no more required 27 W.P No.22-B/2016, Waqar Khan v. Govt: Teacher in BPS-14 18.07.2012 Contract no more required 28 W.P No.23-B/2016, Barkat Ullah v. Govt: Sanitary Worker in BPS-2 09.09.2011 Contract reinstated but has not been allowed to assumed charge 29 W.P No.60-B/2016, Bilal Khan etc v. Govt: Teacher in BPS-14 and BPS-9 19.07.2012, 22.04.2011, 28.09.2012, 17.07.2012, 18.07.2012 and 28.12.2011 Contract due to closing of 2nd shift 30 W.P No.65-B/2016, Noor Jehan Khan etc. v. Govt: Class-IV in BPS-2 31.03.2012, 25.03.2011 and 21.01.2013 Contract due to non adjustment relieved from service 31 W.P No.104-D/2016, Baitullah etc. v. Govt: Teacher in BPS-14 20.04.2011 and 28.04.2011 Contract no more required 32 W.P No.180-B/2016, Muhammad Sharif Khan v. Govt: B.A, B.Ed, M.A and M.Ed, Teacher in BPS-14 30.03.2012 Contract without any reason 33 W.P No.201-A/2016, Azam Shah v. Govt: Naib Qasid in BPS-2 09.07.2011 Contract appointment without authority 34 W.P No.202-D/2016, Malik Jamshed etc v. Govt: Lab Attendant in BPS-2, Shop Assistant in BPS-6, Junior Instructor in BPS-14, Laboratory Assistant in BPS-6, Junior Clerk in BPS-7 25.02.2012, 10.05.2012, 24.02.2012, 07.11.2013, 29.08.2013, 29.02.2012 and 21.01.2013 Contract as per clause IV of his appointment order 35 W.P No.203-D/2016, Muhammad Naeem- ul-Hassan v. Govt: Teacher in BPS-14 02.04.2012 Contract as per clause IV of his appointment order 36 W.P No.228-D/2016, Farman Saadullah v. Govt: Commerce Teacher in BPS-14 11.06.2012 Contract without any reason 37 W.P No.258-D/2016, Muhammad Ali Siraj v. Govt: Junior Instructor (Electrical) in BPS-14 18.01.2013 Contract as surplus employee 38 W.P No.262-B/2016, Jahanzaib Khan v. Govt: Teacher in BPS-14 20.04.2011 Contract being 3rd division in B.A 39 W.P No.302-B/2016, Wajid Ullah Khan v. Govt: Teacher in BPS-14 12.08.2010 Contract being 3rd division in B.A 40 W.P No.378-B/2016, Sajjad Khan v. Govt: Teacher in BPS-9 13.09.2011 Contract due to closing of 2nd shift 41 W.P No.379-B/2016, Atiq Ullah etc v. Govt: Teachers in BPS-14 19.07.2012 Contract due to closing of 2nd shift 42 W.P No.380-B/2016, Imranullah Wazir etc. v. Govt: Teacher in BPS-14 22.04.2011 and 16.07.2012 Contract as surplus employee 43 W. P No.381-B/2016, Bashir Ullah etc v. Govt: Teacher in BPS-14 22.04.2011 and 11.02.2012 Contract no more required 44 W.P No.382-B/2016, Imam Ghulam etc v. Govt: Teacher in BPS-14 13.07.2012, 21.04.2011, 18.07.2012 and 11.02.2012 Contract no more required 45 W.P No.383-B/2016, Fidaullah Fida v. Govt: Teacher in BPS-14 17.07.2012 Contract due to closing of 2nd shift 46 W.P No.392-B/2016, Sher Afzal Khan v. Govt: Teacher in BPS-14 28,04.2011 Contract due to closing of 2nd shift 47 W.P No.393-B/2016, Muhammad Noor v. Govt: Junior Clerk in BPS-7 24.02.2012 Contract due to closing of 2nd shift 48 W.P No.394-B/2016, Zakir Ullah v. Govt: Junior Clerk in BPS-7 02.04.2012 Contract due to closing of 2nd shift 49 W.P No.395-B/2016, Zia Ullah v. Govt: Teacher in BPS-14 06.08.2012 Contract due to closing of 2nd shift 50 W.P No.398-B/2016, Muhammad Ishaq etc. v. Govt: Care Taker in BPS-9 and Junior Clerk in BPS-7 28.09.2012 and 27.09.2012 Contract School is without the approval of governing body of WWF 51 W. P No.399-B/2016, Muhammad Rahman etc v. Govt: Teacher in BPS-14, Subject Specialist in BPS-17 and Computer Instructor in BPS-16 28.04.2011, 18.01.2013, 06.08.2012, and 27.09.2012 Contract School is without the approval of governing body of WWF 52 W.P No.494-B/2016, Saddam Khan v. Govt: Junior Instructor in BPS-14 31.10.2011 Contract poor performance 53 W.P No.502-D/2016, Manohar Anam Raza v. Govt: Teacher in BPS-14 21.01.2013 Contract without any reason 54 W.P No.509-B/2016, Haider Khan v. Govt: Junior Instructor in BPS-14 21.01.2012 Contract no more required 55 W.P No.790-B/2016, Shams Qamar Ali Shah v. Govt: B.Ed Teacher in BPS- 14 28.02.2012 Contract as per clause IV of his appointment order 56 W.P No.945- B/2016, Hikmatullah v. Govt: Account Assistant in BPS-14 21.01.2013 Contract reinstated but no charge has been assumed to him 57 W.P No.979-D/2016, Ehsanullah v. Govt: Junior Instructor BPS- 14 14.01.2013 Contract without any reason 58 W.P No.2167-P/ 2016, Mir Aslam v. Govt: Naib Qasid in BPS-2 23.05.2011 Contract as per clause IV of his appointment order 59 W.P No.4746- P/2016, Mushahid Khan v. Govt: EST in BPS-9 18.01.2013 Contract due to closing of 2nd shift 60 W.P No.78-D/2017, Hidayatullah v. Govt: Class-IV in BPS-2 17.02.2012 Contract being overage 61 W.P No.97- B/2017, Attaullah Khan v. Govt: Library Attendant in BPS-5 06.02.2012 Contract no more required 62 W.P No.156-B/2017, Muhammad Ibrar v. Govt: Teacher in BPS-14 22.04.2011 Contract being 3rd division in B.A 63 W.P No.243-D/2017, Muhammad Umar Usman v. Govt: Teacher in BPS-14 16.02.2012 Contract poor performance 64 W.P No.515-P/2017, Waheed Akhtar v. Govt: Master Degree in Science, B.Ed, DAE (Electrical), Lecturer Physics in BPS-17 19.09.2013 Contract without any reason 65 W.P No.1078-P-2017, Karimullah v. Govt: First class Master, B.Ed, Subject Specialist in BPS-17 18.01.2013 Contract being unqualified 66 W.P No.1079-P- /2017, Amjid Ali v. Govt: First class Master, M.A (Arabic) M.S (Islamic Studies) PTC and B.Ed, Elementary 27.08.2012 Contract being in the probation period and over and above the sanctioned strength. 67 W.P No.1274-P/2017, Akhtar Hayat etc v. Govt: Teachers in BPS-14 07.09.2012, 07.11.2012 and 12.10.2012 Contract without any reason 68 W.P No.1388-P/2017, Shakirullah v. Govt: Teacher in BPS-14 19.07.2012 Contract due to closing of 2nd shift 69 W.P No.1533-P-2017, Ahmad Raza v. Govt: M.A, B.Ed, Teacher in BPS-14 19.07.2012 Contract Salaries not released on the pretext of as surplus employee 70 W.P No.1750- P/2017, Mubashir Nazar v. Govt: Teacher in BPS-14 19.07.2012 Contract being in the probation period and over and above the sanctioned strength. 71 W.P No.3284- P/2017, Usman Farooq v. Govt: Teacher in BPS-14 26.09.2009 Regularized being 3rd division in B.A. 72 W.P No.359-B/2016, Maulvi Hafiz Muhammad Saeed Khan v. Govt: M.A Arabi and Islamiyat, BA, Teacher in BPS-14 17.07.2012 Contract Salaries not released from September 2013 to 15.07.2015 and refused to allow the petitioner to join duty. 73 W.P No.525-D/2015, Saqib Ali v. Govt: Teacher in BPS-14 05.06.2012 Contract no more required/ire-levant quail-fication (two termination order) 74 W.P No.377-B/2016, Sher Muhammad etc. v. Govt: Teachers in BPS-14 and BPS-17 11.02.2012, 16.01.2013, 09.09.2012, 20.02.2012, 16.02.2012, 28.02.2012 and 20.07.2012 Contract As the School was closed being without the approval of governing Body of WWF. 75 W.P No.2230-P/2017, Ayub Khan v. Govt: Vice Principal in BPS-17 03.04.2012 (on fixed pay) 04.06.2013 (Converted from fixed pay to contract) Contract on telephone call he was terminated
3. Respondents were called to file their respective comments, so they filed their respective comments by raising variety of preliminary as well as factual objections asserting therein that this Court has got no jurisdiction. Petitioners are estopped by their own conduct to seek constitutional relief from this Court as they have not approached the forum provided under rules of Worker Welfare Fund (Employees Service) Rules, 1997. They asserted that all the appointments were made either by Secretary/Chairman of Board or other officers of Board or concerned Principal of Working Folks Grammars School in violation of rules, without proper scrutiny of their academic record, without test and interview as petitioners who have 3rd division in BA and were not eligible for the respective posts were appointed, so they were terminated and detailed reasons are given in the termination orders of each petitioner/Ex-employee. So, the parawise comments are comprehensive and are worth reliance, petitioners have no cause of action, so all petitions are liable to dismissal. They supported the termination orders passed by respondents.
4. As different writ petitions were filed at different Hon'ble Benches of this Court at Abbottabad, Bannu, D.I. Khan, Mingora and also at principal Court at Peshawar, so, having common question of law and facts were sent to the principal Court at Peshawar by the order of Hon'ble Judges at Benches of this Court, so, all the petitions mentioned in the table were clubbed together.
5. Learned counsel for petitioners vehemently argued that initially petitioners were appointed on contract basis after fulfillment of prescribed procedure of Workers Welfare Fund (Employees Service) Rules, 1997, both in teaching and non teaching cadres, their academic records were then properly scrutinized. After joining duties and rendering services their contracts were extended and afterward some petitioners who were on contract basis were regularized. Learned counsel for petitioners added that some of petitioners have been terminated when they were under probation, some petitioners were promoted but were not assigned job on the promoted posts and were demoted after promotion to the lower grade on unfounded reasons with allegation of poor performance, un-authorized appointment, even without assigning any reason. All the petitioners have been terminated in violation of Workers Welfare Fund (Employees Service) Rules, 1997, without serving any show cause notice and without conducting an inquiry against them. So, prayed that their terminations orders are based on mala fide, without lawful authority against law as they were on job since their appointment for so many years, so great injustice has been done to the petitioners. In this respect the learned counsel for petitioners placed their reliance on 1996 SCMR 1205, 2009 SCMR 194, 1997 SCMR 1205, 1997 SCMR 1552, 1997 PLC (C.S.) 873, 2008 SCMR 598, 2009 SCMR 412, 2004 SCMR 303, 2000 SCMR 643, 2005 SCMR 85 and 2009 SCMR 412.
6. On the other hand the learned counsel for respondents argued that the petitioners were appointed beyond the required strength of staff without observing legal formalities and in their appointment orders clause IV is quite clear vide which the respondents have the authority to terminate the services of appointees even during probation without assigning any reason. They added that the petitioners who have 3rd division in BA were appointed, therefore, services of such employees have correctly been terminated as in such like cases, there is no need of assigning any reason. Regularization of employees of Board does not confer any right upon employees that they cannot be proceeded if otherwise their appointments are found based on irregularities and against the rules. Lastly they submitted that this Court has got no jurisdiction. In this respect they placed reliance on the judgment of Hon'ble Supreme Court cited 2016 SCMR 1299, Civil Review No.246/2016 in C.A No.1109/2013, decided on 18.10.2016 titled as Secretary Welfare Board Khyber Pakhtunkhwa v. Naimatullah and others, Worker Welfare Fund Ordinance, 1971, Worker Welfare Fund (Employees Service) Rules, 1997 and Minutes of the meeting No.81st of Board.
7. Arguments heard and record perused.
8. From the perusal of averments made in the above mentioned writ petitions and given in the table, the petitioners sought indulgence of this Court through their respective constitutional petitions invoking jurisdiction of this Court for setting aside the termination orders/ notifications of various dates mentioned in the respective petitions as well as in the impugned termination orders briefly depicted in the above table.
9. It is admitted position that petitioners were appointed upon different posts by moving applications in response to the respective advertisements in different cadres either in teaching or non teaching. Some petitioners were appointed on daily wages or on fixed pay or on contract for 03 years. It is further admitted position that the services of some of the petitioners had been regularized. The Board duly advertised the posts of Principal, Vice Principal and Teachers in different grades i.e. Teachers in BPS-14 and Subject Specialists in BPS-17 and Lecturers in BPS-17, but their services have been either terminated or they have been removed from services or have been sent to surplus pool, however this Court noticed that some petitioners filed their representations and though their services were reinstated but despite reinstatement, the Board is not paying them salaries. Similarly some of the petitioners were promoted by the Board promotion committee but afterward they were not only demoted from the promoted posts but their services were also terminated. The petitioners were appointed in prescribed manner and were performing their duties as probationer but during probation period without any show cause notice and inquiry have been terminated.
10. The law governing service matters ordains that when someone is appointed after fulfilling required criteria or appointment is made in prescribed manner according to rules and law duly selected by the Selection Board then the service of such employee could only be terminated after following the law governing procedure for removal from service, meaning thereby that employee should be given a show-cause notice for proposed action of removal from service, showing charges, giving opportunity to reply such charges and conducting of inquiry, recording of evidence but all such vital and important principles of law had not been followed and if such principles are not followed then the termination order become ultra vires, ab initio void, in violation of law and without lawful authority as the above said principles of justice ordains that no one should be condemned unheard (Audi Alteram Partem) and this principle is considered to be embodied in every statute, all rules and regularizations of that body or boards. In the aforesaid petitions this very important principle of justice has been thrown away from the door and was ignored. In some cases even no reason for termination has been given in the termination orders particularly while terminating an employee who was still under probation even in this situation when an employee assumed the charge of his duties and had performed his duties for some months before the expiry of probation period could not be terminated without assigning valid reasons after fulfilling the procedure prescribed by rules. The termination during his probationary period was declared by the Hon'ble apex Court as not tenable. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court in case titled "Secretary, Ministry of Education, Government of Pakistan Islamabad and others v. Muhammad Azam Chaudhry and another" cited as 2009 SCMR
194. The principle enunciated in the above referred case is that services of some petitioners were terminated during probation period, so they challenged the termination order before Service Tribunal and the judgment of Service Tribunal was challenged before Hon'ble apex Court on the ground that services of probationary employee can be terminated during probation period but that petition was dismissed under the principle that without assigning any reason, the service of petitioner/ probationer cannot be terminated. Furthermore the argument that the services of respondents can be terminated without assigning any reason during probation period is not tenable. Similarly in the case of similar circumstances Hon'ble apex Court in its judgment cited as 2000 SCMR 643, even refused leave against the judgment of the Tribunal, wherein the services of petitioners were terminated without show cause notice or inquiry. The principle laid down in the above cited judgment is reproduced as below:-- "In this view of the matter, it was rightly observed by the Tribunal that with his promotion to the next higher rank, he would be deemed to have been confirmed. On account of this situation, we are of the view that the Tribunal rightly held that the termination of service of respondent was illegal, inasmuch as he was entitled to a show-cause notice or an inquiry should have preceded before terminating his service. In this view of the matter, the Federal Service Tribunal rightly accepted the appeal of the respondent."
11. Learned counsel for respondents during arguments and in their comments reiterated that appointing authority while making appointments of petitioners not only violated the appointment rules but committed different irregularities and due to their wrong decision over staffing by way of appointments of petitioners was made, as there were so many lapses on the part of appointing authority due to which the services of petitioners were terminated. This argument in view of law laid down by Hon'ble Supreme Court in case cited as 2014 SCMR 303 is not acceptable as it has no footing and is unfounded as the Hon'ble Supreme Court for and again has held that appointees cannot be penalized, who have been appointed allegedly without following the rules or on irregular basis. In such like circumstances it has been held that it is the appointing authority to be proceeded against and not the appointees who have served the department for a long period of time. In the cited case, of similar like situation the Hon'ble Supreme Court laid down the following rules. "Obviously the appointments so made, were made by the competent authority and in case prescribed procedure was not followed by concerned authority, the appointees/ respondents could be blamed for what was to be performed and done by the competent authority before having verified the qualification and suitability and observance of the due process before issuing the appointment orders
Petitioners cannot penalize the persons/ respondents, who had put in more than ten years service with them considering that there was no allegation of misconduct against them and were only to be removed on account of change in Government on the ground that they were no more required and were not appointed after observance of due process of law. The petitioners/authorities competent should be held responsible and liable for the said lapse on their part. It could not be forgotten the persons/ respondents who have put in more than ten years of their services and thereby have lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage and in case they are to be removed now the same would amount to hitting them hard creating problems for the society at large considering each of the respondent being a bread earner for his family. Reliance is made on 1996 SCMR 413 and 2002 PLC (C.S.) 1027.
12. Similar view has been laid down in the judgment in case "Director, Social Welfare, NWFP, Peshawar v. Sadullah Khan" cited as 1996 SCMR 1350. In the cited judgment, Hon'ble apex Court dealt the circumstances in which the services of petitioners of cited case were terminated on the ground that such appointments were irregular and were on purely temporary basis. The principle enunciated in the cited judgment is reproduced as below:- "The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing to the appointment. So, if some civil servant is appointed by the competent authority against the prescribed rules then action against them who are guilty of making illegal appointment be taken." In this respect if reference is needed in that case we refer 2005 SCMR 85 and 1998 SCMR 1938. The principles of law relating to the service matter are not only to be observed by the Government but also by the statutory bodies who are responsible to act in accordance with law. It was held in case "Arshad Jamal v. NWFP Forest Development Corporation and others" cited as 2004 SCMR 468, it was incumbent upon authorities that before passing order of termination of an employee he should have been issued show cause notice and had been given opportunity of hearing and if the party who has been terminated has not been provided opportunity of hearing that order is without lawful authority and was held set aside.
13. In the petitions in hand, services of most of petitioners were converted from daily wages to contract employment and then serving for a long time on contract basis, their contracts were extended and their services were regularized, hence once the competent authority concerned had regularized the services of an employee it created valuable right in favour of that employee which under the principle of "Locus Poenitentiae" could not be reversed by taking contradictory stances on different time before different forum as the authorities i.e. in instant case "Board" also could not approbate and reprobate in the same breath about the same matter as once employees were regularized and then their services were terminated. In this respect if reliance is needed it be put on 1999 SCMR 1004, PLD 1992 SC 207 and 2008 SCMR 598.
14. So far as the arguments advanced by learned counsel for respondents regarding legal bar on invoking constitutional jurisdiction of this Court is concerned, suffice is to say that the petitioners are not civil servant and are employees of the "Board" which is autonomous body, distinct entity and having Statutory Rules of 1997. Moreover, in identical nature of cases cited as 2007 SCMR 682, Hon'ble Supreme Court enunciated the following principle distinct in nature where in the matter in question was of promotion and objection regarding bar of jurisdiction under Article 212 of the Constitution was raised which was repelled. The rule enunciated is reproduced as below:- "That question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acted in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on it, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong
Hon'ble Supreme Court declined to agree with the learned counsel for petitioner that it was not a fit case for interference by the High Court in exercise of constitutional jurisdiction
High Court has not substituted it for the act of authorities, therefore such plea was preposterous and not relevant leave was refused."
15. Therefore, in wake of above discussed factual as well as legal position, we are of the considered view that the actions/termination orders/demotions passed by the respondents are in violation of rules envisaged in Workers Welfare Fund (Employees Service) Rules, 1997 and general principle relating to service matters as ordained in service laws of Khyber Pakhtunkhwa that an employee either he is in probation or is temporary or is under contract or has been regularized only can be removed from service after following above said rules and if rules and laws are not followed then those termination orders are without lawful authority, based on mala fide and are in violation of principle of justice. Thus are amenable to constitutional jurisdiction of this Court.
16. Thus we in the light of above discussion allow the above mentioned petitions, so termination orders are set aside deemed to be in service from the date of judgment, however they be not paid salaries for such intervening period when after termination they have not served the department as salary is always in lieu of service or is for work done, so, are not entitled for back benefits. ZC/368/P Petitions allowed.