1998 PLP (C (PLC(CS))

Dates of hearing: 18th and 19th December, 1997 This order will decide Writ Petition No. 18070 of 1996, wherein order, dated 1-10-1996 of respondent No.2 has been challenged-

2. The facts are, that Municipal Committee, Shakargarh, through advertisement dated 28-4-1993, published in daily "Khabrain" invited applications for the posts of Octroi Clerks, Naib-Qasid, Typists, Beldar, Electrician etc., which were to be submitted before 5-5-1993, while interviews were to be held on 10-5-1993. The petitioners, applied for employment against those posts, their interviews were held by the Selection Committee formed by the House of Municipal Committee. They were selected on merits and were appointed against those posts. A merit list was prepared, which was approved by the House, in general meeting wherein, the Chief Officer of Municipal Committee, was directed to issue appointment letters to the petitioners after verification of their documents. The petitioners were appointed vide letter dated 13-6-1993, which provided, that the appointment should start from 1-7-1993 while they would remain on probation for two years. The petitioners claim, that they completed probation period satisfactorily and that their services were not terminated during the period of their probation. Later respondent No. 1, issued a directive to Administrator of Zila Councils. Municipal Corporations, Metropolitan Corporations, Municipal Committees and Town Committees in the Punjab vide reference No.SO. IV(LG) 10-5/96, dated 28-8-1996, by which, it was directed, that the appointments made during the ban should be set aside and the Administrators were required to send compliance report within three days. The case of the petitioner is, that they had completed probationary period satisfactorily but respondents Nos.2 and 3, with a view to please Tariq Anees, M.P.A., who was Advisor to the Chief Minister and was entrusted in the removal of the petitioners, mis-interpreted the directions of respondent No. l and issued order, dated 1-10-1996, for the removal of the petitioners on the plea of their employment during ban. The petitioners have challenged the order of removal on the grounds that the same is ultra vires, without jurisdiction and liable to be struck down. Their grievance is, that the appointment of petitioners was made, in due course, by the Selection Committee, after observing necessary formalities, they had completed probation period and were regular employees and that without any notice or opportunity of hearing, they were illegally removed, in violation of rule of natural justice.

3. The petition has been opposed, by the respondents, on the grounds, that the Government had imposed ban, during which period, the appointment was made, which according to the respondents, were irregular and, therefore, the petitioners were removed from service, under the directions issued by respondent No. 1.

4. Learned counsel for the petitioners, argued, that the petitioners were appointed, with effect from 1-7-1993 and in terms of appointment letter, they successfully completed their period of probation and that on the completion of their period of probation, they would be deemed to have been confirmed in their appointment. He further submitted, that the petitioners were not at fault and that they had not committed any fraud nor used political influence, for their recruitment and having secured employment, in the normal course, they could not be removed from service, on the plea taken by the respondents. It was further argued, that respondent No.2 simply carried the terms without trying to appreciate the real import of the order and issued order of removal from service, of the petitioners, without application of independent mind. Lastly, it was argued, that the Deputy Secretary/Deputy Director, O&M(V) S&GAD, Government of Punjab, Services General Administration, Information Department, vide its letter dated 2-11-1995, had clarified, that the appointments made before 5-9-1995, in accordance with the recruitment policy were valid while the recruitment made during 6-9-1995 to 13-9-1995 were not valid. It was further clarified that appointments made after 13-9-1995 in accordance with the recruitment policy were also valid as there was no ban on recruitment after 13-9-1995.

5. Conversely, learned Assistant Advocate-General argued, that under Municipal Committee Services Rules, if no order for confirmation of appointment is issued, before the completion of initial probation period, the probation would be deemed to have been extended and, therefore, the petitioners would be treated to be on probation at the time when they were removed from service and were not entitled to any notice. He further submitted, that the employment having been made during the ban, respondent No.2, simply complied with the directions issued by respondent No. 1, which order cannot be termed as mala fide or unjustified.

6. On consideration of the submissions made, in the course of hearing of this petition, and taking in view, the relevant provisions of law, applicable on the subject, it is observed, that the grievance voiced in this petition is well founded.

7. From the facts, not disputed on record, it is observed, that the appointment of the petitioners was made in due course by adhering to the regular procedure and there is no allegation of recruitment through political influence or back-door means. Admittedly, respondent No.2, invited applications to 'Daily Khabrain' on 28-4-1993, against post of Octroi Clerics, Naib-Qasids, Typists, Baildar and Electrician etc. In pursuance of this advertisement, the petitioners moved applications, they were interviewed by the Selection Committee formed by the House of Municipal Committee, they were selected on merits, the merit list, was approved by the House in General Meeting, wherein, it was directed that respondent No.3 should issue appointment letters to the petitioners, The appointment letters were issued on 13-6-1993, which provided that the appointments would commence from 1-7-1993 with two years probation period. No complaint was made against the petitioners during their period of probation who successfully completed the same. It was not the case of respondents, that the committee dispensed with the service of the petitioners, by exercising any options during probation, therefore, such a plea, having not been raised; either in the letter of removal dated 1-10-1996 or in the reply, cannot be entertained at this stage. The impugned order of removing the petitioners from service, clearly indicate, that the same was issued in compliance to a directive, issued by respondent No.l on 28-8-1996, wherein, it was required, that the appointments made during ban should be set aside. The petitioners had completed more than three years of their service, on the date, when the order of their removal was issued. In the first instance, the position taken by the respondents was self contradictory, inasmuch as, in the letter dated 2-11-1995, issued by Deputy Secretary/Deputy Director, Services General Administration and Information Department, Government of Punjab, it was made clear that the appointments made before 5-9-1995 in accordance with the recruitment policy were valid. This being so, no objection could possibly be raised, to the appointment of petitioners nor the respondents could be allowed to take a contra stand, at a later stage. Even otherwise, the alleged ban, could at best be treated as administrative instructions, the violation whereof, could not invalidate the appointment of the petitioners, who were not at fault and were recruited in due course and after observing I requisite- formalities. The respondents, having advertised the posts, interviewed the petitioners, selected them on merits, through Selection Committee, approved selection in the general house, issued appointment letter, allowed the petitioners to complete period of probation, could not recede, in law or turn around and plead, that the initial appointment was irregular. Admittedly, the advertisement was made by the competent authority, interviews were held by competent person and the House of respondent No.2 competently approved the appointments. This being so, a right had created in favour of the petitioners, of which they could not be deprived on any flimsy basis.

8. In Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350), it was held as follows:-- "It is disturbing to note that in this case petitioner No.2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his services due to irregularity and violation of rule 101.2) ibid. The premise, to say the least, is utterly untenable. 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 the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re-instating the respondent."

9. In Yousaf Ali v. Government of Punjab and others (1996 PLC(C.S.) 801), it was observed as follows:- "I have heard the learned counsel for the petitioner and learned counsel appearing on behalf of the State. It is not the case of the respondent that the appointment was secured by playing some fraud upon Selection Committee. The Recruitment Committee while making selection was obliged to keep in view the selection criteria and if it failed to do so and issued appointment order in pursuance of which the petitioner had joined duty and was performing the same without any misconduct on his part, he could not be removed in a way the impugned order dated 28-12-1995 was issued. After joining the duty a right had accrued to the petitioner was a civil servant and thus he could not be removed from service except in accordance with Efficiency and Discipline Rules, 1975. The said right could not be taken away from him in the manner as the one vide impugned order. The impugned order dated 28-12-1995 was not sustainable in law and was without lawful authority and jurisdiction. Reliance is placed on "Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi" (PLD 1992 SC 407), "Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others" (1992 SCMR 1652), "State vs. Muhammad Ismail and others" (1980 SCMR 268) "Province of West Pakistan v. Muhammad Yasin" (PLD 1964 SC 438) "Alnoor Textile Ltd. v. Collector of Customs" (1990 ALD 356) "Muhammad Ibrahim etc. v. M.C. Chiniot" (1990 ALD 655) "Mumtaz Hussain v. District Magistrate" (1990 PCr.LJ 1784) and "Muhammad Ayub v. Custodian of Evacuee Property" (PLD 1963 Karachi 551)."

10. In the present case, the petitioners did not play any fraud in the matter of their recruitment they had not secured back-door entry, there was no allegation of using political influence in securing appointment, their appointment was made in consequence of a regular procedure adopted by the respondents, they were selected on merits and worked for a period of three years without complaint and in this view of the matter, legal rights had been created in favour of the petitioners and consequently, their appointment could not be rescinded, prejudicial to the interest of the petitioners. Even otherwise, respondent No.2 has acted mechanically inasmuch as, it did not apply his independent mind to the facts of each case nor he attempted to realise, that valuable rights had accrued to the petitioners which could not be withdrawn in arbitrary manner. If respondent No.2, had proceeded in departure to any administerial instructions, it would neither vitiate the appointment of petitioners nor would deprive them of the right, accrued in their favour. It is not denied, that no action was ever taken against the officials, who had issued advertisement for employment against these posts or completed the entire procedural requirements, before issuing letter of appointment to the petitioners. This being so, the petitioners cannot be punished, for any alleged fault on the part of the officials of the respondents. The petitioners having been lawfully appointed, there being no complaint against them, no proceedings having ever been held against them under. Efficiency and Discipline Rules, they could not be removed from their, services, on the ground, as taken in the impugned order.

11. For the reasons above, the impugned orders are declared to be without lawful authority and are accordingly set aside. In consequence, the writ petition is allowed as prayed for. No order as to the costs. A.A./M-556/L Petition accepted,