2016 PLP (C (PLC(CS))

FAISAL ZAMAN KHAN, J.

The facts giving rise to the present petition are that petitioner was serving in Pak PWD, Islamabad as Estimator (Civil) in BS-11 when respondent No.1 made a request for sending the petitioner on deputation for three years to be posted as Sub-Engineer, TMA, Pakpattan Sharif, whereupon through order dated 27.2.2007 he was sent on deputation for a period of three years. Upon culmination of the said period in the year 2010, the period of deputation was further extended for one year. Thereafter, on 10.11.2011, petitioner made an application before the respondent-department for his absorption in Local Council Service/TMA Cadre as Sub-Engineer, whereupon respondent No.1 constituted a District Selection Committee vide notification dated 20.8.2011, upon which recommendations were made and vide order dated 03.12.2011 petitioner was absorbed in Local Council Service (LCS) as Sub-Engineer (BS-11). As a sequel to the above, petitioner approached the parent department (Pak PWD) who in view of his absorption struck off his name from the strength of the department. Subsequent thereto, vide order dated 31.7.2012, order of absorption dated 03.12.2011 has been declared as null and void and petitioner has been repatriated to his parent department with immediate effect, therefore, this petition.

2. Learned counsel for the petitioner submits that neither any show cause notice was issued to the petitioner nor any opportunity of hearing has been provided to him, by virtue of which he could explain his position before the department. He further submits that the department in isolation and without adhering to the provisions of the relevant rules has passed the impugned order, which is not sustainable. He also submits that in the case in hand the principle of locus poenitentiae is attracted, therefore, the order of repatriation could not have been passed.

3. Conversely, learned Law Officer submits that as the original order of absorption was without jurisdiction, therefore, declaring the same to be null and void is well within the powers of the respondent-department and thus, no interference can be made by this Court. She also submits that there is no point in affording an opportunity of hearing to the petitioner insofar that when the original order of absorption is not sustainable, no fruitful purpose will be served by a subsequent opportunity of hearing. She further submits that against an order of repatriation a writ petition is not maintainable. Finally submits that principle of locus poenitentiae is not attracted in the present case.

4. I have heard the learned counsel for the parties and have gone through the record.

5. The order of absorption dated 03.12.2011 is reproduced hereunder: "On the recommendation of District Selection Committee (DSC) constituted by the Government of the Punjab vide notification No. LCS (Admn)-3(29)/76 dated 20.08.2011, Mr. Muhammad Riaz Mehmood Sub Engineer (BS-11) in Tehsil Municipal Administration, Pakpattan Sharif is hereby absorbed in Local Council Services (LDS) as Sub Engineer (BS-11) with immediate effect according to the Punjab Local Council Service (LCS) (Appointment and Conditions of Service) Rules, 1983." Upon perusal of this order, it is obvious that the order of absorption has been made on the recommendation of a Committee constituted by the department under Punjab Local Council Service (LCS) (Appointment and Conditions of Service) Rules, which was the applicable law. As a sequel to above, the parent department of the petitioner has issued the following order: "Consequent upon absorption in Local Council Services vide District Coordination Officer, Pakpattan Order No.LG-PPN/356 dated 03.12.2011 as Sub-Engineer (BS-11), where presently he was working on deputation basis, Mr. Muhammad Riaz Mehmood, Estimator (Civil) (BS-11) is hereby stand relieved from Pak. P.W.D. w.e.f. 03.12.2011. His name is struck off the strength of this department from the same date and he will sever all connections with this department." This order would clearly show that petitioner no more remains to be on the roll of his parent department, therefore, he for all intents and purposes has become the employee of respondent No.1.

6. Subsequently, the order of absorption was recalled due to following: "The order No. LG-PPN/356 dated 03.12.2011 passed by the District Coordination Officer, Pakpattan Sharif regarding absorption of Mr. Mohammad Riaz Mehmood, Estimator (Civil), PAK PWD, Islamabad as Sub-Engineer (BS-11) in the LCS Service, is hereby declared null arid void.

2. Mr. Mohammad Riaz Mehmood, Estimator (Civil), PAK PWD, Islamabad working as Sub-Engineer (BS-11) in TMA Pakpattan Sharif is hereby repatriated to his parent department with immediate effect". From the perusal of the impugned order, it is manifest that no reason whatsoever has been given, by virtue of which this could be ascertained that why the initial order of absorption was declared null and void. The respondent-department even otherwise has not considered the effect of order dated 16.2.2012 reproduced supra issued by Pakistan Public Works Department, through which petitioner no more remains to be their employee. By virtue of passing the impugned order, petitioner has been left in lurch as he could not be repatriated to his parent department being no more in their service.

7. It is clear and obvious from the absorption order that a valuable right accrued in favour of the petitioner and he did deserve an opportunity of hearing prior to recall of such an order, through which his right to livelihood is being snatched. In the case in hand, it was imperative for the department to have issued a show cause notice and after affording an opportunity of hearing, any order, which the department felt appropriate, should have been passed, which certainly include recall of order of absorption, that too after giving cogent reasons.

8. There is no cavil to the proposition that in every case an opportunity of hearing is not a sine qua non. In its latest pronouncements, the Hon'ble Supreme Court of Pakistan has laid down parameters for the application of the rule of audi alteram partem. The Hon'ble Supreme Court of Pakistan in judgment reported as Justice Khurshid Anwar Bhinder v. Federation of Pakistan and another [PLD 2010 S.C. 483] while interpreting the above rule has held that in following case, opportunity of hearing is not required: "(i) When an authority is vested with wide discretion .. (ii) When the maxim `expressio unius est exclusio alterius' is involved . (iii) Where absence of expectation of hearing exists .. (iv) When compulsive necessity so demands .. (v) When nothing unfair can be inferred (vi) When advantage by protracting a proceeding is tried to be reaped (vii) When an order does not deprive a person of his right or liberty . (viii) In case of arrest, search and seizure in criminal case (ix) In case of maintaining academic discipline .. (x) In case of provisional selection to an academic course (xi) In case of enormous malpractices in selection process This view has again been reinforced in judgment reported as Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another [PLD 2014 S.C. 585].

9. In the case in hand, the above principle enunciated by the Hon'ble Apex Court is not attracted insofar as that a valuable right after due process accrued in favour of the petitioner, which was taken away without any reason. The act of not affording an opportunity of hearing to him militates the concept of natural justice and fair play, therefore, on the ground of condemning the petitioner unheard, the impugned order is not sustainable. Even otherwise, the case of the petitioner does not fall within the exceptions mentioned above.

10. As regards the applicability of principle of locus poenitentiae, it is yet to be determined that whether or not the right, created in favour of the petitioner, was creation of illegal exercise of power? It is true that the principle of locus poenitentiae is not to harbour or perpetuate a wrong but conversely it also protects the rights of persons, in whose favour a decisive step has been taken by the government, which they have to own. Reliance can be placed on Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others [2012 SCMR 673], Chief Secretary, Government of Punjab and others v. Malik Asif Hayat [2011 SCMR 1220], Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others [2011 SCMR 408] and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others [2009 PLC (C.S.) 161]. In view of the aforementioned law, a mere declaration about an order being null and void would not suffice and cannot take any valuable rights, as has been done in the present case.

11. For what has been discussed above, I find the order dated 31.7.2012 passed by Secretary, Local Government & Community Development (respondent No.1) to be against the principle of natural justice, fair play and in violation of Articles 4, 9 and 10-A of the Constitution of the Islamic Republic of Pakistan, therefore, the same is set aside.

12. In the above context, this petition is allowed. ZC/M-391/L Petition allowed.