2005 PLP 85 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

All the appeals above mentioned, after leave of Court, are directed against the judgment, dated 13-1-2001 of N.-W.F.P. Service Tribunal whereby their appeals against the orders of removal from service by the departmental authority, were dismissed.

2. The Agriculture Department of the Government of N.-W.F.P. had appointed Muhammad Shoab as Field Assistant in BPS-6 on 3-3-1996; Muhammad Asif Khan as Crop Reporter in BPS-5 on 25-9-1995 and Muhammad Zulfiqar as Field Assistant in BPS-6 on 12-3-1996. Subsequently, their services were terminated on the ground that their appointment was illegal and void ab initio, being against the prescribed rules: The representations before the higher authority failed whereafter they resorted to the Service Tribunal which also dismissed their appeals.

3. Leave to appeal was granted by this Court in line with the leave granted in connected Petitions No.475-P of 1999 and 501-P of 1999, to consider as to whether the appointment of the petitioners was illegal and void ab initio being against the prescribed rules and whether the Government having first appointed the appellants without observing the codal formalities could subsequently turn around and say that such appointments were illegal.

4. Before coming to the merits of the case, it may be recalled at this stage that the learned Additional Advocate-General, while speaking from record, has admitted that all the three appellants were otherwise qualified and eligible for the appointments in question. That there is no evidence to .the effect that during the period of appointment their performance was not satisfactory and that they were guilty of any misconduct. In view of the state of affairs aforesaid we are convinced that their was not a case of removal from service on grounds of inefficiency or unsatisfactory performance during probation period. This we observe with reference to the arguments of the learned Additional Advocate-General that as they were removed from service during probationary period, it could be so done without assigning any reason and without the issuance of a show-cause notice.

5. When one adverts to the orders of removal from service, one clearly finds that the removal was not without the assignment of reason but the reason with clarity was specified to the effect that their appointments were void and illegal being against the prescribed rules. In these circumstances, the department was bound to issue notice to the appellants to show cause as to why their services be not terminated accordingly. Had such notice been issued, the appellants might have come out with the defence that the appointments were not illegal and that the illegality, if at all, had been committed by the department itself for which action they could not be penalized. We are fully convinced that the instant one was a case where the appellants were totally condemned unheard and were made to suffer for the illegality committed by the Government itself.

6. The principle of natural justice and audi alteram partem, has grossly been violated. This principle was endorsed by this Court in Mst. Maryam Yunus v. Director of Education PLD 1990 SC 666(e) and the non-issuance of notice was held could be ignored provided a fair opportunity of representing his point of view had been given to the civil servant at some stage or the other. In the instant case no such opportunity was given at any stage before the termination of service.

7. Coming to the merits of the grounds of dismissal, it was deprecated by this Court in Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar v. Sadullah Khan 1996 5CMR 413 where a Full Bench cognizant of similar circumstances has observed that the department having itself appointed civil servant in violation of rules could not be allowed subsequently to turn around and take benefit of its own lapses in order to terminate the services of a civil servant. The department having itself committed irregularity and having itself violated the prescribed procedure cannot punish the civil servants for its own misdeeds and after the lapse of a considerable time during which the civil servant has satisfactorily performed his duties.

8. In subsequent case, and rather recently, in Syed Sikandar Ali Shah v. Auditor General of Pakistan 2002 SCMR 1124 a Full Bench of this Court had taken serious note of such removals from service by the Government. The Court observed that even if some case appears to be of political influence, the competent authority should be bold enough to face such influence. It was further remarked that "Obeying capricious and arbitrary directions of " political bosses without raising slightest protest by Competent Authority depicts a cowardly and condemnable trend".

9. Numerous civil appeals numbering ten were heard by this Court and-decided on 28-5-2002 involving the same question of appointments being against the prescribed procedure. Such appeals were accepted and the above reason for removal from service was not allowed to be sustained (Civil Appeal No.616 of 2000 and others) Nisar and 9 others v. Government of N.-W.F.P. and others decided on 28-5-2002.

10. While following the verdicts aforesaid, it is reiterated once again that a Government, as such, is a perpetual entity. The heads might change but the Government does not. The action once taken by one administration is to be followed by the changed administration, more particularly when it involves the employment of the people. It is sad to observe that thousands of people are rendered jobless and tens of thousands of families are rendered destitute simply because some subsequent administration did not endorse the action of .the previous administration. In present times people are rendered jobless in order to accommodate certain other people of their own choice. It is tantamount to creating nothing 'but false sense of achieving employment levels. Action requires to be taken against those who are guilty of making illegal appointments. The funny side of the picture is that the same authority commits illegality itself not once but twice; once at the time of appointment and second at the time of removing them from service. The authority cannot be allowed to punish others for the illegal acts of their own.

11. Consequently, the appeals are accepted, the impugned judgments dated 13-1-2001 are set aside, the removal from service of the appellants is declared to be void as well as grossly violative of the principles of natural justice, locus poenitentiae and estoppel. They are hereby reinstated with back-benefits. I have added my separate note. (Sd.) Judge KHALIL-UR-REHMAN RAMDAY, J.

I have had the benefit of reading the judgment proposed to be delivered by my lord Sardar Muhammad Raza Khan,-J. in Civil Appeals bearing Nos. 1283, 1284 and 1285 of 2001. Despite the immeasurable respect and reverence that I have for the acumen and competence of my learned brother, I have not been able to persuade myself to agree either with the conclusions reached by my lord in these matters or with the reasons which have led my lord to the said conclusions. I have, therefore, decided to express my own views about the same.

2. The facts relevant for the purpose of deciding these appeals which stand admitted, uncontroverted or proven on record are:

(a) that Asif appellant in C. A. No. 1284 of 2001 was appointed as Crops Reporter on 25-9-1995 while Muhammad Shoaib and Muhammad Zulfiqar appellants in C.As. Nos. 1283 of 2001 and 1285 of 2001 were appointed as Field Assistants on 3-3-1996 and 12-3-1996 in the Agriculture Department of the Government of N.-W.F.P., respectively on account of the orders of the then Agricultural Minister of the said Province commanding their appointment to the said posts; (b) that as per the record, the said Zulfiqar appellant had secured a 'C'-Grade in his matriculation examination and had obtained 1285/2250 marks in the Field Assistants' Course while Muhammad Shoaib appellant had got a 'B'-Grade in matriculation examination and could manage only 1383/2250 marks in the Field Assistants Course. Asif, however, has elected not to place his certificates on the file and his academic achievements are, therefore, not discernible from the record; (c) that the posts in question fell in BPS-5 and BPS-6 and as per the N.-W.F.P. Civil Servants (Appointments, Promotion and Transfer) Rules of 1989, the filling up of the said posts was required to be preceded by an advertisement in the press notifying availability of the said posts; inviting applications from all the eligible candidates and the consequent recommendations of the Departmental Selection Committee as a result of the requisite testing of all the qualified applicants; (d) that the said rules were never followed as admittedly, the availability of the said posts was never advertised in the press or in any other manner; no applications were invited from the eligible persons and obviously in the absence of the same, there was no question of any examination being held by the Departmental Selection Committee or its consequent recommendations; (e) that the appellants had never been tested, interviewed or examined by the Departmental Selection Committee or by any one else for that matter; (f) that the then .political Government was dismissed in November, 1996 and the Care-taker Government which came in place ordered scrutiny of all appointments made in violation of the rules and the law and the resultant termination of the services of all those who had been appointed to any posts in violation of law, merit and transparency; (g) that as a result of the above noticed exercise, the services of the appellants were also terminated in the month of February, 1997 during the days of the Care-taker Government; (h) that the appellants had not been thrown out of service by a new political Government to oblige its own favourites but their services had been terminated, as has been mentioned above, by a non-political and a Care-taker Government; and finally. (i) that the appellants had manoeuvred their appointments to the posts in question by exerting political influence in complete disregard of the law and the requirements of merit and transparency.

3. The appellants filed departmental appeals against the termination of their services which were dismissed on the ground that they had been appointed to the posts in question in violation of merit and without observing the procedure prescribed for the purpose.

4. This led the appellants to the N.-W.F.P. Service Tribunal with appeals under section 4 of the N.-W.F.P: Service Tribunals Act of 1974 which appeals were also dismissed through a consolidated judgment announced on 13-1-2001.

5. They then approached this Court with Civil Petitions for Leave to Appeal bearing C. Ps. Nos. 96-P, 97-P and 98-P of 2001 which were allowed.

6. Hence these appeals.

7. From the admitted and established facts first-above-noticed, the questions which arise for determination, by this Court are:

(i) should this Court extend a helping hand to the appellants by protecting gains which had been secured by them through exploitation of their political clout and through a method which was not only illegal but which was also immoral and unethical?; (ii) should the appellants be permitted to go unpunished and to continue to enjoy the looted benefits by blaming only the appointing authority for obeying an illegal command' of a political boss or should the appellants at whose instance the illegality was commenced and who were thus the abettors, the instigators and the consequent beneficiaries of the said illegality be also punished and be at least denuded of the benefits received by them through the said unlawful exercise?; (iii) should the impugned action of the competent authority which had righted a wrong on the strength of the facts which were not controvertible, be reversed only because no show cause notice had been served on them especially when the conditions of their appointment envisaged termination of their services without notice and more so when they had exercised their right of being heard during the course of appellate departmental proceedings?

8. What emerges from the proved facts is that the appointments of the appellants to the posts in question had been made in complete disregard of the rules and the law regulating the subject. Therefore, what had been secured by the appellants was an illegal gain.

9. When one is looking for a person to serve one's own self, then the one being desired is the best available servant. Likewise, the Country and the people also have a right to claim that they be also served by the best and the brightest. Consequently, it is the right of the people and the Country that the persons who are selected to be public servants in the service of Pakistan' are the elitest from amongst the available lot. As has been noticed above, one of the three appellants had chosen not to take this Court into confidence about his academic achievements. The other two who had placed their academic results on record had managed only a Grade-"C" and a Grade-'B' in matriculation examination and a little more than 50% marks while qualifying the Field Assistants' Course. It is nobody's case, neither is it believable that in the whole of N.-W. F. P. no young man could ever manage to obtain a grade better than a 'B' or a 'C' in the matriculation examination or marks more than 1285/2250 and 1383/2250 in the Field Assistants' Course. The conclusions are thus irresistible that the appellants who were appointed to the posts in question, were far from being the best available, to serve the people, the N.-W.F.P. and the Country. This being so, the appointments in question were a serious encroachment upon the rights of the people and the Country who consequently stood deprived of their said rights and were thus the sufferers of this illegal exercise.

10. There is yet another silent sufferer in the process. This victim of the said atrocity comprises of the young men who could well be much better qualified and consequently much more eligible and worthy of holding the posts in question but who were deprived of their said right because of the unethical, dishonest and immoral act leading to the appointment of the appellants to the posts in question, in a secret and clandestine manner.

11. I, would, therefore, conclude that the appointments in questions were illegal and unlawful but only because they had been made in a manner offensive of the rules and the law on the subject but also because they had been made in serious violation of the merit and transparency and that the same had deprived the people and the Country of their right to be served by the best and that these appointments had also trampled over the rights of the other, better and more qualified persons.

12. The object of the establishment and the continued existence of the Courts of law is to dispense and foster justice, and to right the wrongs. This purpose can never be completely achieved unless the injustice done was undone and unless the Courts stepped in and refused to perpetuate what was patently unjust, unfair and unlawful. It is for this reason that the Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill-gotten gains. Nor having the Courts ever opted to exercise their powers in aid of injustice or to grant any relief to persons with unclean hands or for protecting the unethical or undeserved benefits. One would find umpteen number of judgments in support of the above mentioned proposition but I would refer only to some of them:

(1) Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, (2) The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others 1975 SC 331 at 350, (3) Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231, (4) Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106, (5) Tufail Muhammad and others v. Raja Muhammad Ziaullah and others PLD 1965 SC 269, (6) Khiali Khan v. Haji Nazir and others PLD 1997 SC 304, (7) Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907 and (8) Farzand Ali v. Province of West Pakistan PLD 1970 SC 98.

13. Reversing an action taken initially without issuing a show-cause notice was not a principle of universal application. The Courts have consistently refused to intervene in such a situation where the concerned person had an opportunity of hearing available to him at the appellate stage and had in fact, availed of the same. Undoing of such an act was also refused where the facts leading to the impugned action were uncontrovertible and admitted and where despite a prior hearing, the results could and would not have been any different. Reliance is placed on the following:

(1) S.L. Kapoor v. Jagmohan and others AIR 1981 SC 136, (2) Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669 and (3) Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907.

14. In the present case, it is an admitted fact, not denied even before us and which is borne out even from the orders appointing the appellants to the posts in question, that they had been appointed only because the Agricultural Minister had so directed. It is also an unalterable truth never controverted even by the appellants that the posts in question had never been advertised and that they had never been put through any test, interview or examination before they were selected for the said posts. The above mentioned academic achievements of the appellants are also a matter of record which the appellants could not have been able to improve even if a show-cause notice had been issued to them.

15. In the circumstances, absence of a notice to the appellants before they were thrown out of service especially when they had been heard at the appellate department stage could not be said to be fatal to the act of their dismissal from service at the instance of the competent authority.

16. It is true that the illegal act of appointing the three appellants to the posts in question was an act committed by the competent authority. It is also true that the competent authority was in the wrong in having blindly obeyed an illegal command of a political boss. And it is also not deniable that the competent authority deserved punishment for committing the said crime. But then it is also equally true that the abettors; the instigators; the ones at whose instance and initiation a crime is committed and the ones who benefit from the commission of a crime also deserve to be punished. The law does not permit such-like persons to go scot-free to enjoy the stolen, the looted and the robbed fruits. In the present case, it would be highly unjust to propose a punishment only for the competent authority for having made such-like appointments and to spare the appellants and not even ask them to return what they had received illegally, unlawfully, unethically and immorally.

17. It may be added that while the appointments of the appellants had been made during the reign of a political Government under the command of a political boss through exploitation of political clout, the wrong had been righted not by another political Government to oblige its cronies but by an interim non-political Care-taker Government.

18. Having thus examined all aspects of the matter, I am of the opinion that these appeals which seek protection of ill-gotten gains and perpetuation of an unethical illegality deserve to be dismissed so that this Court is not blamed for encouraging a culture where might was right and where people were permitted to secure benefits through unfair mean.

19. And I order accordingly. Order of Court: By majority verdict of two to one, the appeals are accepted, the impugned judgments, dated 13-1-2001 are set aside, the removal of service of the appellants is declared to be void as well as grossly violative of the principle of natural justice, locus poenitentiae and estoppel. They are hereby reinstated with back-benefits. M.H./M-172/S Appeals accepted.