2001 PLP (C (PLC(CS))

MUHAMMAD ROSHAN ESSANI, J.

By this Constitutional petition, the petitioners Nabi Bux, Shamsuddin, Muhammad Haroon, Muhammad Ilyas, Wazir Ahmed, Mukhtiar Ali, Mst. Munawar Sultana, Ahmed Bux, Khadim, Abdul Qadir, Mst. Gulshan, Mst. Shahzadi, Hakim Ali, Aziz Ahmed, Mst. Razul, Tofique Ali, Naimatullah, Muhkumuddin, Muhammad lqbal, Riaz Ahmed, Abdul Ghafoor, Manzoor Hussain, Fazul Karim, Aijaz Ali, Mst. Sairan, Mst. Shameem Akhtar, Anwar Ali, Ali Khan, Muhammad Ismail and Mushtaque Ahmed have sought the following relief:-- (a) To declare that the petitioners being the regular Government employees are governed by the Sindh Civil Servants Acts/Rules, 1973 and they cannot be thrown out from the service, arbitrarily, maliciously and without adopting the legal course/procedure provided under the law, and to declare the general order, dated 15-9-2000, issued by the respondent 1 in respect of the removal of the services of the petitioners, as without lawful authority and of no legal effect. (b) To direct the respondents 2 to 7 not to act on the basis of the letter, dated 15-9-2000, issued by the respondent 1 and on the basis of the said letter neither to discharge nor terminate the services of the petitioners and declare that the action taken by the respondent 1 in letter dated 15-9-2000 as, nullity and void in the eye of law and against the principles of natural justice. (c) To grant permanent injunction, restraining the respondents from discharging/ terminating the petitioners from their services in any manner whatsoever. (d) To grant costs of the petition. (e) To grant any other equitable relief as deemed fit by this Honourable Court in the circumstances of the case. The brief facts as disclosed in the petition are that the petitioners were appointed by the respondents under the directions from the respondent 1 vide Letter No.3-9/82 PRCDP -DSW/VOT/1-4051, dated 23-5-1998 whereby ban was lifted on fresh appointment of disabled persons against 1 quota under the Disabled Person (Employment and Rehabilitation) Ordinance, 1981, issued by the respondent

2. The petitioners were appointed by the respondents after observing I all the codal formalities as required under the law. The petitioners are serving at various places for the last three years. It is further stated that the petitioners are serving to the satisfaction of their superiors and no adverse or undesirable remarks have ever been assigned or communicated to them. On the contrary their services were appreciated and acclaimed by their superiors time and again. The petitioners are disabled persons and their appointments were made on a special quota of 1 % which has now been increased to 2% under the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981, the petitioners were working in their jobs till March/April, 2000 when they received letters to appear before the Enquiry Committee headed by respondent 2 in connection with their appointments. It is further stated that after the usual enquiry conducted by the respondents in presence of Monitoring Team, the appointments of the petitioners were found in accordance with law and the procedure laid down for the purpose of appointments of the disabled persons and petitioners were allowed to continue in service and they were also assured that their services will be regularized on the permanent basis. The identical appointments made in other provinces of the country have been regularized but the services of the petitioners have not been regularized so far. They have also made a grievance in the petition that the petitioners have served for more than 2-1/2 years continuously without any break and as such their services have become equally good as regular one, as in the case of their other counterparts of other provinces of Pakistan. The petitioners came to know that respondent 1 sent a letter to respondents 2 and 3 directing them to cancel all appointments made against disabled quota in the Province of Sindh. It is stated that the petitioners are working against the existing vacancies as regular and confirmed employees of the respondent 1 by virtue of their length of service and the action is mala fide, arbitrary, in violation of the Articles 4, 8, 18 and 27 of the Constitution of Islamic Republic of Pakistan, 1973 and so also against the principles of natural justice. Respondents 2 to 7 have filed comments wherein they have admitted that the petitioners were appointed under the direction from the respondent 1 vide Letter N0.3-9/82PRCDP-DSW/VOT/1-4051, dated 23-5-1998 against the 1 % quota of disabled persons. It is also admitted that the petitioners were appointed after observing ail the codal formalities 'as required under law and they are serving in their respective Departments at various places to the utmost satisfaction of their superiors and no adverse or undesirable remarks have ever been assigned or communicated to the petitioners since their appointment and their services were appreciated by their superiors time and again. It is admitted that all the petitioners are disabled persons and their appointments were made on special quota of 1 % which has now been increased upto 2 % under the Disabled Persons (Employment and Rehabilitation) Ordinance, 1981. The result of enquiry. was very much in the knowledge of respondent

1. It is further admitted that the petitioners were working in their respective jobs when in the months of March and April, 2000 they were served with a letter issued to them for appearing before the Enquiry Committee headed by the Director, Technical Colleges, Hyderabad constituted by respondent 1 and the appointments of the petitioners were found in accordance with law and procedure prescribed under service laws and rules and as such the petitioners were allowed to continue in the service and they were also assured that their services will be regularized in near future on the permanent basis. However, it is denied that the monitoring team was involved in the enquiry. So far period of service is concerned, it is stated that the petitioners are serving for last one to two years. The regularization of appointments, in identical matters made in the other Provinces where like services have been regularized has not been challenged/denied. It is also admitted that a vested right has been created in favour of the petitioners as they have been serving without any break and are equally good as regular one as in the case of their other counterparts of other Provinces of Pakistan. The jurisdiction of this Court has not been challenged by the respondents 2 to

7. The respondent 1 has filed the comments which are surprisingly contrary to the comments filed by the respondents 2 to

7. It is stated that since several complaints were received in the Department about illegal appointments against disabled quota, therefore, the Department conducted enquiry through Director, Technical Education and their appointments were found to have been made in contravention of the rules, therefore, the notices were issued against them. It is averred that this Court is devoid of jurisdiction and only Sindh Services Tribunal is competent to extend the relief to the petitioners. Today this matter was fixed for katcha peshi and by consent of the parties, the same is admitted to regular hearing and disposed of finally. We have heard Mr. Imdad Ali Awan, learned counsel on behalf of the petitioners and Mr. Sher Muhammad Shar, learned Assistant Advocate- General, on behalf of the State. The former has relied upon the case of Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232) and S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others (PLD 1981 SC 612). The latter has relied upon the case of Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280), Tariq Ali v. Director, Health Services, Multan Division, Multan and 4 others (1999 PLC (C.S.) 1297) and Dr. Muhammad Ayub Manager, Government Loralai v. Province of Balochistan through Secretary, Government of Balochistan (2000 PLC (C.S.) 60). The perusal of material placed on record shows that the appointing authority has not denied the averments made in the petition, stated hereinabove. They have stated that the petitioners were appointed strictly in accordance with, law, rules and prescribed procedure. The respondent 1 has not specified any complainant in the comments nor copy of the same has been annexed with it. It is not specified as to which rule was infringed by the appointing authority while appointing the petitioners. The replies to the paragraphs are stereotype. The contention of the learned A.A.-G. that the petitioner are Government servants, therefore, jurisdiction of this Court under Article 199 is barred, is misconceived. No doubt ordinarily this Court does not entertain the matters concerning the terms and conditions of service but this is a case of exceptional nature on its peculiar facts and circumstances. When the rights of parties guaranteed by the Constitution .are infringed and action is contrary to law and in excess of authority or without jurisdiction, this Court can interfere under Article 199 of the Constitution to safeguard the same. The exercise of powers under Constitutional jurisdiction cannot be denied to a party merely on technical grounds. The persons cannot be left at, the mercy and whim of the Government functionaries. The person in bureaucratic hierarchy are supposed to act within the arbit of their authority. Any step/action to override the limits prescribed by law or transgress in order to defeat the ends of justice, or the orders which find no support from Statute can be challenged in writ jurisdiction without availing or exhausting remedy at Departmental level. In the case of Dr. Moula Bux and others v. Government of Sindh and others (C. P. No. D-164 of 1998) decided on 12-1-2000, a D. B. of this Court observed as under:-- "Public power is a sacred trust in the hands of the public functionaries which must be exercised in larger public interest and not otherwise. If a power or discretion is conferred upon an authority, it is always expected that such functionary shall exercise such discretion in the larger interest of the public at alrge and not for personal or extraneous interest." It is again observed as under:-- "Basic principle of rule of law and good governance is that administrative actions should be just and fair and not perverse and arbitrary." In the context of jurisdiction, it is observed as under:-- "Learned Additional Advocate-General finding him on weak wicket on the merits of the case, seriously contended with all emphasis at his command that the jurisdiction of this Court to entertain the petition is barred by Article 212 of the Constitution as the impugned action would fall within the ambit of the terms and conditions -of, service of a civil servant which can only be agitated before the Sindh Services Tribunal to the exclusion of all Courts including the High Court. On the face of it argument may have an element of attractiveness but examining the proviso (b) of section 4 with reference to proviso (b) of the Sindh Service Tribunals Act, 1974, we find that the impugned order does not appear to fall within the terms and conditions of service of a civil servant and would rather fall within exception clause. This proviso postulates that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to he promoted to a higher post or grade. Obvious effect and impact of the impugned order appears to be that the petitioners were not found fit and suitable to hold the office for which they were selected and they were not considered even fit for holding another equivalent position which order may not fall within the exclusive domain of the Service Tribunal as misunderstood by the learned Law Officer appearing for the respondent-Government. For this reason alone we are of the definite view that the case of the petitioners falling outside the ambit of the jurisdiction of Service Tribunals, remedy lay only before this Court in the exercise of Constitutional jurisdiction and not before the Service Tribunal." In the matter in hand even no show-cause notice was issued to the petitioners. It is well-settled that no one should be condemned unheard. We have also seen some of the petitioners who have appeared in the Court. They are either blind, or crippled or physically incapacitated. They cannot move without help or assistance of either white stick or scratches. The authorities (ibid) relied upon by the learned Assistant Advocate -General Sindh are distinguishable from the facts and circumstances of the present case. Consequently the petition is allowed with no order as to costs. The miscellaneous applications stand disposed of. H.B.T./N-43/K Petition allowed.