1997 PLP (C (PLC(CS))

Islamabad. "

2. The written statement was filed by the respondent No. 1 through the Deputy Attorney‑General. Para. No. 11, which contained the specific allegation that the services of the petitioner were terminated at the instance of the aforesaid M.N.A. for the purpose of accommodating his nominee was not at all answered. Similar allegations contained in ground (a) were not adverted to but it was pleaded that the petitioner's services were purely on temporary and ad hoc basis and, therefore, could be terminated without assigning any reasons or issuing of any notice. The allegations made in the petition read with the afore‑quoted letter, prove beyond doubt that the petitioner's services have been terminated on the direction of the Special Assistant to the Prime Minister on the desire of the M.N.A.

3. Learned counsel for the petitioner has submitted that several writ petitions including Writ Petition No. 8508 of 1990 were filed by several other Customs Inspectors who had also been appointed like the petitioner on the recommendation of the Prime Minister Secretartiat/Placement Bureau and whose services had been terminated in similar circumstances by the C.B.R. Their writ petitions were accepted on 19‑5‑1991. The Federal Government filed appeals in the Honourable Supreme Court but the same were dismissed as withdrawn vide order dated 21‑11‑1993. Annexure 'K' is the copy of the order dated 21‑11‑1993 passed by the Supreme Court. It reads as under: ‑‑ Present: Mr. Justice Dr. Nasim Hasan Shah, C.j. Mr. Justice Fazal Elahi Khan. Mr. Justice Manzoor Hussain Sial. C.As. 468 to 508 of 1992 Additional Commissioner, Income Tax and others versus Zafar Hussain and others (On appeal from the judgment and order of the Lahore High Court, Lahore dated 19‑5‑1991 in W.P. No. 8986 of 1990 etc.) Aftab Iqbal Chaudhry, Deputy Attorney‑General and Gulzar Hasan, Advocate‑on‑Record (absent) for Appellants. Talat Farooq Sh., Advocate Supreme Court and S. Abul Asim Jafri, Advocate‑on‑Record (absent) for Respondents (in C.As. 492, 485 and 508 of 1992). Ch. Akhtar Ali, Advocate‑on‑Record for Respondent (in C.A 493/92). Learned Deputy Attorney‑General submits that he has been instructed to withdraw the above‑noted appeals. Mr. Talat Farooq Shaikh, the learned counsel for the respondents in some appeals has no objection to the withdrawal of the appeals. The appeals are, accordingly allowed to be withdrawn and shall stand dismissed as with no order as to costs. "

4. Learned counsel has contended that the impugned letter of termination of the petitioner's services is void ab initio because it has been passed on the direction of the Special Assistant to the Prime Minister to oblige an M.N.A. who wanted his own nominee to be appointed in place of the petitioner. According to the learned counsel, the impugned order has neither been passed by the competent Authority in his own discretion nor the same has been passed in the public interest. It is patently a mala fide order passed in abuse of authority. He further submitted that like other Customs Inspectors who were similarly placed, the petitioner also requires to be reinstated in service. On the question of maintainability of the petition, learned counsel for the petitioner has submitted that Article 212 of the Constitution is not attracted in the circumstances of the present case as in fact it is a case of appointment and no terms and conditions are involved because the petitioner's services have been terminated on the desire of the M.N.A and the impugned order has not been passed within the scope of the relevant service rules. Nor the impugned order can be said to have been passed by the competent Departmental Authority.

5. Mr. A. Karim Malik, Advocate represented respondent No.

1. He has informed that respondent No. 2 who had been inducted in service in place of the petitioner on the asking of the M.N.A. did not join the service. Learned counsel has opposed the acceptance of the writ petition and in this regard he has firstly contended that this petition is barred by Article 212 of the Constitution. According to him, the petitioner should approach the Federal Service Tribunal, which alone is competent to grant the appropriate relief. The second submission of the learned counsel is that the very appointment of the petitioner was not in accordance with law because it was made in pursuance of a directive received from the Prime Minister Secretariat. According to the learned counsel, since the appointment was not in accordance with the prescribed rules and the procedure, no grievance can be made if the same has been undone by the Department. It is further submitted that under the terms of the appointment letter services could be terminated without assigning any reason or issuing show‑cause notice. The impugned order, therefore, according to him, has been passed within the scope of the appointment letter and the same cannot be challenged in writ jurisdiction. Learned counsel has also taken objection that actually the C.B.R. had directed respondent No. 1 to pass the impugned order but the C.B.R. has not been made respondent in this petition. In, the absence of the C.B.R. as a respondent no relief can be granted. On the question of decisions in similar matters, learned counsel has submitted that the concession given for withdrawal of the appeal in the Supreme, Court did not create estoppel for respondent No. 1 to pass the impugned order.

6. Admittedly many writ petitions had been filed by those who were appointed on the recommendation of the Prime Minister's Secretariat/Placement Bureau against substantive vacancies on ad hoc basis to various categories (BPS‑9 to BPS‑14). Twenty‑eight writ petitions were filed by the Customs Inspectors who had been appointed in the same manner in which the petitioner was appointed and their services were also terminated on the direction of the Cabinet These writ petitions were accepted by this Court through Consolidated judgment passed in Writ Petition No. 8508 of 1990 with the following conclusions: "The petitioners in all these cases were appointed against substantive vacancies after they satisfied the qualificational requirements. All the persons employed through the instrumentality of the Placement Bureau have been thrown on road. Some of them have been become over‑age. It is not the case of the respondents that either the petitioners lacked requisite qualification or the authority that appointed them lacked the competence to do so. They remained in service for quite some time. During all this period the petitioners worked at different places, went through training successfully, qualified departmental examinations and acquired vested rights. In all these cases the impugned orders were not passed by departmental authority within the contemplation of the above explanation. The orders have been simply implemented pursuant to a policy decision of the Cabinet. The departmental authority has simply communicated the decision without application of its mind. Mere communication by the departmental authority of an order would make the departmental authority as the maker of the same. Application of mind is not visible from these orders. As mentioned in the preceding paragraph by a single stroke of pen, the Collector has terminated the services of 32 employees simply mentioning the decision of the Government communicated to him. The defect is so apparent on the face of the record that by no stretch of imagination it can be said that the authority has applied its mind independently. Reliance in this respect is placed upon Mst. Chanda Begum v. Settlement Commissioner and another (PLD 1977 SC 503). Since the impugned orders in these cases have not been passed by the departmental Authority, as such the appeal would not have been competent nor the Service Tribunal would have any Jurisdiction to entertain the same. Hence, the bar of jurisdiction imposed by Article 212 of the Constitution would not be attracted in this view, I am fortified by a judgment delivered by Mr. Justice Shafiur Rahman as the then was reported in 1985 PLC (C.S.) 868 Malik Faiz Muhammad Awan v. Punjab Transport Board wherein the learned Judge held that those persons who entered the service initially in the Government and retained the character of a civil servant, the Managing Director of Road Transport Board would not have any power to retire them as he was not falling within the description of departmental Authority."

7. The rule of consistency demands that this, petition should also be accepted and it is so ordered. The question of jurisdiction with reference to Article 212 of the Constitution was also raised in the said writ petitions but the same was repelled. In the peculiar circumstances of this case, the impugned order having been passed on the dictation of an extra‑departmental authority for extraneous considerations is patently mala fide and cannot be said to have been passed by the competent Departmental Authority and hence it was not amenable to departmental appeal and, therefore, bar of Article 212 of the Constitution is not attracted. Moreover, the impugned order is also the appointment order of respondent No. 2 and being appointment order it falls outside the scope of the Service Tribunal.

8. It may be pointed out that the present writ petition is pending in this Court since 1990. It appears that due to mistake by the office this petition could not be heard alongwith the aforesaid writ petitions decided by my learned brother Tanvir Ahmad Khan, J. Had it been placed alongwith similar cases before the Honourable Judge it too would have been accepted. Therefore, no laches are involved nor can the petitioner be allowed to suffer on account of mistake of the office of the Court.

9. So far as the question that the impugned order has been passed within the scope of the contract accepted by the petitioner that his services could be terminated without assigning any reason or show‑cause notice is concerned, it may be observed that such an order cannot be passed by the functionaries of the State without assigning any reason. When it is said in an employment contract that services can be terminated without assigning any reason, it does not mean that the order can be passed without any reason at all. So long as the vacancies exist, the persons appointed against those vacancies cannot be removed from service arbitrarily without cogent reasons. "Without assigning reason" means that valid reasons for removal of an employee must exist on record but it may not be communicated to the employee. This question came up before the Supreme Court of India to Kumari Shrilekha Vidyarthi etc. v. State of U.P. and others (1991 PSC 212) where a large number of State employees were terminated en block without assigning any reasons on account of the contract clause. The order of termination of the employees was set aside and it was held: ‑‑ "....... The expression ' at any time' in the other part of clause (3), which enables the Government to terminate the appointment ' at any time without assigning any cause' merely means that the termination may be made even during the subsistence of the terms of appointment. The expression 'without assigning cause' means without communicating any cause to the appointee whose appointment is terminated and is not equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee, though the decision has to be communicated. The non‑assigning of reasons or the non‑communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy." 10 The conclusions that I have arrived at in the present case are that the services of the petitioner have been illegally terminated and he should also be reinstated like other Customs Inspectors whose cases were accepted by this Court in Writ Petition No. 8508 of 1990.

11. For what has been stated above, the writ petition is accepted with no order as to costs. The impugned order dated 3‑10‑1989 passed by respondent No. 1 is declared to be without lawful authority and of no legal effect, with the result that the petitioner will stand reinstated with effect from the date he reports to respondent No. 1 for duty. Needless to observe, if any further training is required to be undertaken the petitioner can be obliged to do so according to law. Similarly if any departmental examination is required to be passed for the purpose of continuing to hold the post of Customs Inspector, the petitioner will be obliged to do the same, in accordance with law. A.A./I‑18/L Petition accepted