1998 PLP (C (PLC(CS))

MUSHTAQ AHMAD MEMON, J.

The petitioner who was in permanent employment of Irrigation Department, Government of Sindh as Darogha had retired from service on 9-3-1995 upon attaining the age of superannuation. It is the case of the petitioner that as per settled Policy of all the Government Departments including the Irrigation Department, the children of retired as well as deceased employees are to be considered for appointment on preferential basis if they are otherwise found fit and eligible for the job. Accordingly, after retirement of the petitioner, as above, on 19-3-1995, the petitioner's son Shafquat Ali Abro submitted an application to the respondent No. 1 for appointment to the post of Darogha in his father's place specifically referring therein to the factum of retirement of the petitioner with effect from 9-3-1995. The Chief Engineer, Irrigation, Sukkur Barrage on 20-3-1995 endorsed the said application to the respondent No.2 with following directive:-- "May be appointed in father's place." (Sd.) 20-3-1995. Subsequently through office order No.EC/G-93(d)915 of 1995 dated 7-6-1995 the petitioner's son Shafquat Ali was appointed as Darogha in BPS-4. The contents of said office order, being relevant, are reproduced herein:-- "Mr. Shafqat Ali s/o Ghulam Muhammad Abro is hereby appointed as Darogha in BPS-4 viz. Rs. - 1360--58--2230 with effect from resumed duty and posted in Rice Canal Division-1, Larkana for 90 days only against the clear vacancy due to retirement of Ghulam Muhammad Darogha from Rice Canal on 9-3-1995 Division Darogha from Rice Canal Division-I. (Sd). SUPERINTENDING ENGINEER, WESTERN SINDH CIRCLE, LARKANA Accordingly, the above-named Shafquat Ali joined service from 11-6-1995 (F'.N). For the month of June, 1995, G.P. Fund subscription at the rate of Rs.70 was also deducted from the salary of the petitioner's son. Suddenly on 12-7-1995 the respondent No.1 vide No.EC/G-148/1191 of 1995 communicated the following to the respondent No.2:-- "As per decision of High Court Bench at Larkana Mr- Miandad was appointed as Darogha vide this office order No.EC/G-93 dated 30-3-1995 but your office did not obey the orders, reason that known to your office. The appointment orders issued in favour of Mr. Miandad vide this office above quoted orders stands good by the Honourable Court. The appointment orders in favour of Mr. Shafquat Ali Darogha for 90 days issued vide order No.EC/G-93(d)/915, dated 7-6-1995 is hereby cancelled. (Sd.) SUPERINTENDING ENGINEER, WESTERN SINDH CIRCLE, LARKANA. " The grievance of the petitioner is that the above quoted order dated 12-7-1995, was passed cancelling the appointment order of his son without any justification or notice and affording him any opportunity of hearing. It is urged that the order dated 12-7-1995, in so far as it relates to the petitioner's son, be quashed. On behalf of the respondents, comments were filed wherein the defence taken is that the petitioner's son was appointed for 90 days only and there is no notification of the Government laying down policy of appointment of children of the retired Government servants being appointed in his/their place. Mr. Ali Azhar Tunio, learned A.A.-G., Sindh, who appeared for the respondents submitted that the petition was barred in view of Article ' 12 of the Constitution of Pakistan and for the reason that the petitioner's son Shafquat Ali had earlier filed Constitution Petition No. 127 of 1995 before! this Court challenging the order impugned in the present proceedings which came to be dismissed in, limine through order dated 23-8-1995 passed in the following terms:-- "The counsel for the petitioner states that appeal is pending before Superintending Engineer which has not been decided yet. This matter is a service matter and after the decision of the Superintending Engineer the remedy is also available to the petitioner. Under these circumstances this petition is not maintainable at this stage which is accordingly dismissed in limine." On facts, it is urged by Mr, Tunio that the petitioner had been appointed against leave vacancy for a period of 96 days and. therefore, his appointment could be terminated at any time without notice. It is further urged that the appointment of petitioner's son, being in violation of ban on fresh appointments imposed by the Government of Singh, was illegal, and, therefore, could not create any right enforceable in exercise of Constitutional jurisdiction. At the conclusion of hearing, the learned A.A.-G. submitted before us copies of the following three documents:-- (i) Memorandum dated 29th October, 1996 issued by the Finance Department, Government of Sindh, with the subject 'ban on appointments'. (ii) Memorandum dated 17-7-1997 issued by Private Secretary to Minister for Irrigation and Power requiring various officials of Irrigation Department to furnish details of appointments made on the recommendations of the Chief Minister and other Ministers since March, 1997 with further direction not to issue any appointment order on the recommendation of the Irrigation Minister or any one else. (iii) Application by one Ali Akbar addressed to the S.E. Western Sindh Circle, Larkana seeking appointment as Mason Mistry bearing endorsement dated 16-4-1997 by the Chief Minister of Sindh requiring the S. E., Larkana to "Pl. appoint after lifting of ban". The application bears further undated endorsement by the S.E., Western to the respondent No.2 reading "Pl. appoint him as desired by C. M." The petitioner, during hearing, urged that his son was appointed against permanent vacancy caused by his own retirement as per the known and established policy of the Government and the period of 90 days specified in the appointment order was factually the period of probation and the appointment, therefore, could not be recalled, much-less, without notice. It is further urged that there was no ban on appointment of children of the retired/deceased Government employees and in any event, one Miandad son of Muhammad Juman was appointed as Darogha on permanent basis after the appointment of the petitioner's son. The appointment of petitioner's son was evidently made against the clear vacancy caused by retirement of his father and he too had applied for appointment against the post falling vacant upon retirement of the petitioner. The order for his appointment was made by the Chief Engineer, Irrigation, Sukkur Barrage and both the respondents are his subordinates. The order was duly complied and was acted upon by the petitioner's son who had resumed his duty after completion of all the formalities including medical fitness; and, the G.P. Fund subscription was also deducted from the month of June, 1995 from his salary. The insertion of the words 'for 90 days only' in the appointment order dated 7-6-1995 is contradicted by the words appearing next in the very order "against the clear vacancy due to retirement of Ghulam Muhammad Darogha from Rice Canal (on 9-3-1995) Division". Note: The words and figures "on 9-3-1995" appear to have been added subsequently in hand apparently by the respondent No. l or his office staff. In view of the above, the respondents cannot dispute that the appointment of Shafquat Ali was made against the clear vacancy caused upon the retirement of the petitioner and quite evidently on the basis of the abovementioned Policy of the Government. Even otherwise we are inclined to take judicial notice that the existence of such policy and its having matured into an established practice, since even with regard to service of this Court and the subordinate Courts, such policy was adopted and notified on 26-4-1993 copy whereof is filed by the petitioner as Annexure ' G' to the memo. of petition. Moreover, assuming that the appointment of petitioner's son was for a period of 90 days, the order dated 7-6-1995 was recalled on 12-7-1995 which happened to .be 32nd day of service of petitioner's son. For such additional reason, the impugned order dated 12-7-1995 cannot be sustained. As to the previous proceedings initiated by the petitioner's son having been dismissed in limine, suffice to observe that the primary reason for its dismissal was that an appeal preferred by the petitioner was pending before the respondent No. l . On our query, the respondents Nos. l and 2 who are present in Court stated that no appeal is pending nor had any appeal been filed before the respondent No.

1. The order dated 22-8-1995 having been passed on the basis of the above-referred factual error, going to the root of the matter, cannot be pressed to support the plea of res judicata. In any event, the above-referred petition was manifestly dismissed as premature and such intention is reflected from the use of phrase 'at this stage' in the order dated 22-8-1995. As to the question of maintainability on the ground of ban contained in Article 212 of Constitution of Islamic Republic of Pakistan, we may note that the impugned order was admittedly passed without notice to the petitioner's son. The appointment of petitioner's son against the clear vacancy caused by his retirement, had given rise to a vested right, which even otherwise cannot be taken away after having been acted upon by virtue of doctrine of locus poenitentiae. Reliance is placed on judgment in the case of Anis Kubra v. Province of Sindh PLD 1978 Karachi

556. Besides, any act or order passed without notice and hearing is a nullity since such requirement invariably has to be followed being part of natural justice. Needless to add that to be treated in accordance with law, including the natural law, is inalienable right guaranteed to every citizen by the due process clause v contained in Article 4 of the Constitution. Any violation of the principles of natural justice can, in any event, be remedied in exercise of power under Article 199(2) of the Constitution of Islamic Republic of Pakistan. It was on account of such requirement that the order passed without hearing the aggrieved person was set at naught by the Supreme Court of Pakistan in the case of Anisa Rehman v. P.I.A.C. and another reported in (1994 SCMR 2232), despite settled principle laid down earlier that writ jurisdiction cannot be exercised for enforcement of the terms of service of an employee of statutory body or corporation who was otherwise regulated by the principles governing Master and Servant. We may record here that the exercise of jurisdiction under Article 199 of the Constitution is discretionary and relief has to be granted in aid of justice and equity. Reliance in this respect: is placed on judgment of Division Bench of this Court in 1995 PLC (C.S.) 1221, wherein the following observation was made:-- "Orders tainted by mala fides or suffering from absence of jurisdiction or those attracting the coram non judice concept are classic examples of unfettered amenability to Constitutional jurisdiction and in matters touching such issues powers of judicial review can never be taken away. Still, the broad proposition is itself subject to Constitutional constraints. Firstly, an ouster clause is a sub-constitutional legislation cannot be equated with an ouster of the Court's jurisdiction under the Constitution itself and when the latter is the case interference, if any, is necessarily to be more circumspect. Secondly, the Constitutional jurisdiction of the superior Courts is always to be exercised in aid of and not for perpetuating injustice and the power being discretionary, in appropriate cases, even where the rule is attracted, relief can be declined: Export Promotion Bureau v. Qaiser Shafiullah, 1994 SCMR 859 etc. Lastly, pleas of mala fides or want of jurisdiction are to be real and not palpably sham or illusory. All necessary details, demonstrating colourable exercise of power, are to be spelled out, which then have to be closely examined before interference in such matters, where the Constitution itself has barred recourse to superior Courts, is made. Even then interference retrains an exception rather than the rule." The three documents produced by the respondents towards fag-end of the hearing would rather show that the contention of the respondents regarding ban on appointments, is without any substance. The first document dated 29-10-1996 is to the effect that appointments against all leave and deputation vacancies had been banned till further orders. The appointment of the petitioner's son, besides having been trade much earlier viz. 7-6-1995, was against clear vacancy caused by retirement of the petitioner himself. The second document dated 17-7-1997 pertained to the appointments trade on the recommendations of the Chief Minister and other Ministers since March, 1997. Such documents, ex facie, could not afford any justification for the impugned order. From the last document, which does not bear any date, it can be inferred that on 16-4-1997 some ban on appointments did exist, but subsequent order of appointment passed by the respondent No. 1 shows that the ban does not exist any more. However, there is nothing to infer from the last-mentioned document that any ban on appointment of children of the retired employees existed at the relevant time. Indeed, none has been shown to us by the respondents despite opportunity. In the circumstances, the petitioner has been able to make out a case for grant of relief sought in this petition. The impugned order dated 12-7-1995, in so far it relates to Shafquat Ali son of Ghulam Muhammad, is quashed as unlawful and of no legal effect. Let appropriate writ be issued. The parties will bear their own costs. A.A./G-38/K Petition accepted.