2017 PLP (C (PLC(CS)N)

MUHAMMAD AZIM KHAN AFRIDI, CHAIRMAN.

This judgment shall dispose of the instant Service Appeal No.1716/2011, titled "Muhammad Asif v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and 3 others" and Service Appeal No.1717/2011, titled "Mst. Andaleeb Naz v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and 3 others" as identical facts and law are involved in both the service appeals.

2. Brief facts giving rise to the present service appeals are that several posts in BPS-17 (PMS Group) were advertised by the Khyber Pakhtunkhwa Public Service Commission hereinafter referred to as the Commission vide advertisement No.02/2008 dated 09.02.2008. In response to the said advertisement appellants along with others also applied for the said posts. In due process appellants were put to test and interview but they failed to secure the required 50% marks and as such they were not selected thus constraining them to prefer Writ Petition No.2572/2009 before Hon'ble Peshawar High Court which was allowed vide worthy judgment dated 21.01.2010. On the strength of the said judgment the appellants were allowed grace marks and appointed vide notification the 11th June, 2010 on the condition that the appointment would be subject to final decision of the august Supreme Court of Pakistan in CPLAs already preferred by the provincial government against the said worthy judgment of the Hon'ble Peshawar High Court.

3. Vide worthy judgment dated 25.11.2010 the august Supreme Court of Pakistan allowed CPLAs filed by the Provincial Government and set aside the judgment of Hon'ble Peshawar High Court referred to above. On the basis of the judgment of the august Supreme Court of Pakistan the services of the appellants were terminated vide notification dated Peshawar June 15, 2011, which is now impugned before us.

4. Learned counsel for the appellants has argued that once the judgment of the Hon'ble Peshawar High Court was implemented then the respondents were not in a position to withdraw the appointment orders of the appellants as during the pendency of appeals before the august Supreme Court of Pakistan, such orders of appointments were not desirable. That the provincial government should have made efforts for securing a restraint order from the apex court in their favour. That irregulars appointment once made could not be cancelled. That one Muhammad Arif, a similarly placed employee, and appointed as such was not removed from service, therefore, appellants were also entitled to similar treatment and their removal from service was thus a discriminatory treatment not permissible under the law. In support of his arguments learned counsel for the appellant has placed reliance on cases-law reported as 1996 SCMR 413 (Supreme Court of Pakistan) 2009 SCMR 775 (Supreme Court of Pakistan), 2006 SCMR 678 (Supreme Court of Pakistan), 2003 CLC 1196 (Karachi), PLD 2008 Supreme Court 412, PLD 2010 Supreme Court of Pakistan 623, 2007 SCMR 330 (Supreme Court of Pakistan), and 2013 SCMR 726 (Supreme Court of Pakistan).

5. Learned Senior Government Pleader has argued that respondents had shown utmost respect to the judgment of the Hon'ble High Court by acting upon the same subject to final decision of the august Supreme Court of Pakistan. That the said judgment of the Hon'ble Peshawar High Court was set aside by the august Supreme Court of Pakistan and as such the respondents were left with no option but to comply with the judgment of the august Supreme Court of Pakistan. That the appellants were already in the know of their conditional appointments as the same were accepted by them subject to final decision of the august Supreme Court of Pakistan, That the appellants cannot seek protection by terming their appointments as irregular as the said appointments were made in accordance with the directions issued in Writ by Hon'ble High Court which directions and decision were set aside by the august Supreme Court of Pakistan. That case of Muhammad Arif was not identical with the case of the appellants as the appellants were granted grace marks which practice and procedure was not approved by the august Supreme Court of Pakistan while the case of Muhammad Arif was that of integration of papers. That even if it is presumed that Muhammad Arif was extended any undesirable favour even then appellants could not be extended any favour as an act not supported by law cannot be made a precedent for taking decisions in the mode not recognized by law.

6. We have heard arguments of learned counsel for the parties and perused the record.

7. According to record placed before us appellants had secured 49.90 marks in their test and interview and were therefore short of the prescribed threshold which was 50% of the total marks. The said issue was agitated before the Hon'ble Peshawar High Court in Writ Petition No.2572 of 2009 which was decided in favour of appellants and on the strength of the judgment of the Hon'ble Peshawar High Court dated 21.1.2010 grace marks were allowed to the appellants and, consequently, they were appointed subject to final decision of the august Supreme Court of Pakistan. The august Supreme of Pakistan set aside the judgment of the Hon'ble Peshawar High Court in Civil Appeals Nos.40-P/2010 to 57-P/2010 and C.P. No.110-P/2010 on 25.11.2010. We were also informed that against the said judgment of the august Supreme Court of Pakistan, Review Petition of the appellants was also dismissed. Thus it is evident that the judgment of the Hon'ble High Court, providing, foundation for that appointment orders of the appellants had become non-existent.

8. In case law cited at the bar and reported as 2003 CLC 1196, PLD 2008 Supreme Court 412, PLD 2010 Supreme Court 623 and 2007 SCMR 330 the parties were condemned unheard as no opportunity of hearing was afforded to them while in case of appellants the situation is altogether different as the appellants were a party to the proceedings before August Supreme Court of Pakistan and were having notice of the proceedings and were aware of its impact on their service as their orders of appointments were made subject to final decision of the august Supreme Court of Pakistan. We are therefore of the view that in such circumstances the opportunity of hearing was extended to and availed by the appellants before the August Supreme Court of Pakistan and therefore no additional notice whatsoever was required as a pre-requisite for the annulment of the said appointment orders.

9. In reported case of Saadullah Khan reported as 1996 SCMR 413, appointment was made in violation of rules by the department. Same are the facts of the case of Zulfiqar Ali reported as 2006 SCMR 678 while in the case in hand the competent authority had declined appointment to the appellant which were later on conditionally made subject to decision of the august Supreme Court of Pakistan meaning thereby that the appointment was not an irregular appointment but declared illegal on the basis of the judgment of the apex court and as such appellants could be extended no benefits of a notification issued on the basis of the directives of the Hon'ble High Court which directions were set aside by the August Supreme Court of Pakistan.

10. The August Supreme Court of Pakistan, in case of Kashif Zafar reported as 2013 SCMR 726 has ruled that similarly placed employees are to bhe dealt with similarly.

11. So far as the case of Muhammad Arif an alleged similarly placed employee, is concerned the said civil servant is not a party before us. We are therefore not in a position to give any definite findings affecting or regarding his career. We were however informed that his case was scrutinized in the prescribed manners by the Establishment Department and that his case was found that of integration of papers and that he was notified as PMS officer on the basis of another judgment of the Hon'ble High Court. The case of the appellants is not of integration of papers and is that of grace marks and as such dissimilar to the case of Muhammad Asif. If it is presumed that the services or the said civil servant Muhammad Arif were also liable to termination in view or the judgment of the august Supreme Court of Pakistan referred to above and that he was illegally and unlawfully spared even then the appellants would not be entitled to claim a favourable treatment on the analogy of entitlement to similar treatment extended to a similarly placed employee as an offending treatment, destructive to mandate of law, cannot be adopted or extended on such an analogy as such a practice would certainly amount to by passing the mandate and requirement of law.

12. In view of the above we hold that the present appeals are devoid of merits. The same are therefore, dismissed, leaving the parties to bear their own costs. File be consigned to the record room. ZC/2/KPKST Appeals dismissed.