2008 PLP (C (PLC(CS))

HAFIZ TARIQ NASIM, J.

In view of the similarity of facts and questions of law, I propose to decide all the Writ Petitions Nos.352 of 2007, 1080 of 2007, 7960 to 7971 of 2007, 2225 of 2007, 6723 of 2007, 6724 of 2007, 6828 of 2007, 8189 of 2007', 7028 of 2007, 6292 of 2007, 7993 of 2007 and 11015 of 2006 through this single order.

2. In response to the advertisement in press all the petitioners applied, for the advertised posts, they were called for interview by the duly constituted Committee, who after examining the eligibility of the petitioners, determined their suitability, recommended for their appointments and ultimately the petitioners were appointed but of course on contract basis for a period of three years in the year 2006. Accordingly the petitioners joined, performed their duties but unfortunately without any complaint whatsoever all of them were ousted from service through the impugned orders whereby the petitioners' appointments were cancelled from the date of its issuance, treating these appointments as illegal and without merit

3. Aggrieved by this, the petitioners filed departmental representations/appeals but with no result and as such approached this Court through these present writ petitions.

4. The learned counsel for the petitioners submit that while cancelling the appointment orders, neither the petitioners were served with a show-cause notice, nor they were provided an opportunity of hearing and even the provisions of contract were not adhered to resulting into serious miscarriage of justice.

5. On the other hand, the learned Assistant Advocate-General Punjab, Lahore opposed the writ petitions with vehemence and submits that the writ petitions are not maintainable because the petitioners are regulated by the principle of Master and Servant, it is the domain of the competent authority either to retain the petitioners or to cancel their contract because a contract employee has no right for continuation in service.

6. Arguments heard; record perused.

7. So far the objection of law of Master and Servants applicability and non-maintainability of the writ petitions is concerned, it is repelled on the short ground that there are series of judgments whereby this Court can interfere in such-like controversy which is under dispute.

8. In support of my view, reliance can be made on those very judgments wherein even the employees of the statutory corporations having non-statutory rules when felt aggrieved of the orders of the management, approached the High Court, the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 came for their rescue, whereas in the present controversy the matter is between the Government and the employees and there is no question of any statutory or non-statutory organizations and rules meaning thereby that the cases of the present petitioners are on better footing than the cases of statutory corporations.

9. As mentioned above, that in cases of statutory corporations, this Court interfered on different occasions and for that the following judgments can be quoted. Karachi Development Authority and another v. Wall Ahmed Khan and others 1991 SCMR 2434, wherein it is held, "If the statutory body is amenable to the writ jurisdiction the remedy under Article 199 would be available to challenge the mala fide exercise of statutory authority." Lal Din v. Vice-Chancellor and others 1994 PLC (C.S.) 880 wherein it was held, "Employee's service being governed by the rules and regulations framed under the statute, relationship of Master and Servant was not applicable

Premature retirement of an employee being not warranted by law, order of his retirement was without lawful authority and of no legal effect and thus, quashed." Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232 it is held that, "Maxim "audi alteram partem" would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein

Violation of the maxim could be equated with the violation of a provision of law warranting pressing into service constitutional jurisdiction." Muhammad Ashraf v. Director-General, Multan Development Authority, Multan and another 2000 PLC (C.S.) 796 a Division Bench of this Court held, "Law of Master and Servant is a notion of English common law and does not emanate from any constitutional provision or even a statute or some Injunctions of Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h.)

Resort to rule of English Common Law could not be taken in view of Art.2-A of the Constitution of Pakistan. Rule of master and servant

Where jurisdictional bars have been enacted, against superior judiciary, in legislative measures, such bars and fetters, if within the legislative and constitutional bounds, may take effect with exception of an action which was mala fide; an action which was without jurisdiction and an action which was coram non judice

Where relationship between the parties was governed by the rule of master and servant, action adverse to the servant falling with such three exceptions would not be exempted from scrutiny of High Court

Constitutional petition, therefore, was maintainable." Administrator, District Council Larkana and others v. Ghulab Khan and 5 others 2001 SCMR 1320 it was held that, "High Court would become competent in issuing a direction to the respondents who are admittedly persons performing functions in connection with the affairs of the Federation/Provinces, to do a thing which they are required by law to do within the jurisdiction of the High Court." Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 SCMR 468, it is categorically held, "The question arises whether the appellant can maintain Constitutional petition even if no statutory rules had been framed by the Provincial Government if the above said rules are deemed to have not been framed properly as they had not been notified through official Gazette. It has been held in Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director Pakistan International Airlines Corporation and others 2002 SCMR W34 that where a removal order of such an employee of corporation even in the absence of statutory rules is made on particular grounds which are in the nature of charges, the employee has a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement." Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad 2005 PLC (C.S.) 1300, it is held, "Absolute power and authority cannot be arrogated to or exercised by any State functionary

Concept of Master and Servant relationship has undergone a change and the relationship of master and servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well-settled norms of justice."

10. In addition to this I can rely on a judgment of the Honourable Supreme Court of Pakistan reported as Mrs. Munawar Sani v. Director, Army Education 1991 SCMR

135. This case was related to a civil servant and the aggrieved civil servant approached the High Court for the redressal of her grievance, the point of jurisdiction was raised even up to the level of Honourable Supreme Court of Pakistan and the same was resolved in the following terms: "The question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound-down obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post."

11. To my mind this objection of the learned Assistant Advocate-General Punjab, Lahore is repelled; that in my understanding the High Court is established to provide justice to an aggrieved party albeit on merits and on law.

12. Now coming to the merits of the case, suffice it to say that the impugned termination/cancellation of appointment letters' plain reading reveals that allegedly some illegality or irregularities were found by the authorities in the original orders of the petitioners' appointments. In such-like controversy it is well-settled law laid down by the Honourable Supreme Court of Pakistan that "whenever there is some element of allegation in the termination order without resorting to the procedure of regular inquiry, no one can be non-suited despite the fact that the employee is even on contract". Reliance in this respect can be made on a judgment of Honourable Supreme Court of Pakistan reported as Muhammad Amjad v. WAPDA.1998 PSC 337.

13. Admittedly in the present cases the record produced by the departmental representative reveals that before passing the impugned order neither any inquiry was conducted nor the petitioners were served with show-cause notice, even they were not heard by the authorities concerned, meaning thereby that the petitioners were condemned unheard which otherwise is a violation of law laid down in Pakistan International Airlines (P.I.A.C.) through its Chairman and others v. Nasir Jamal Malik and others 2001 PSC 1.

14. It is also an admitted fact that after the issuance of appointment orders the petitioners joined, performed their duties, drew their salaries and as such a valuable right had been accrued in favour of the petitioners which could not be recalled in view of well-established principle of locus peonitentiae. On this principle reliance can be placed on Liaquat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556, Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837, Rukhsar Ali and 11 others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.). 1453, Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmad Bhutto 2005 SCMR 57 and as such the impugned orders being violative of law (supra) cannot hold the field.

15. There is another aspect of the matter and that is, that if at all it is found that at the time of appointments, the then authorities made illegal or irregular appointments, even then in that eventuality the petitioners cannot be held responsible for the same and cannot be made sufferers whereas it. is a well-settled law laid down by the Honourable Supreme Court of Pakistan in a number of judgments like Director Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350, Chairman; Minimum Wage Board Peshawar and another v. Fayyaz Khan Khattak 1999 SCMR 1004, Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303, Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCMR 1077 and Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary N.-W.P.P. Peshawar and others 2007 PLC (C.S.) 179, wherein it is held that instead of penalizing the employees, the responsible be taken to task.

16. It is not the case of the respondent/department that any of the petitioners was not eligible at the time of appointment as per requirement of the advertisement and the post.

17. It was specifically asked to the departmental representative that if some of the petitioners is found ineligible for the said posts it be mentioned even before this Court but the departmental representative after consulting the record could not controvert the eligibility of any petitioner so in the presence of such record, I have left no other option except to set aside the impugned orders whereby the petitioners were terminated/their appointment orders were cancelled.

18. Resultantly, all the petitioners are reinstated into service with effect from the date of their termination. It is clarified that in compliance to the orders of this Court, the petitioners shall be entitled for the pay of the intervening period from the date of their termination to the date of reinstatement because they could not perform their duties with no fault of them rather, they remained out of service due to the inaction of the departmental authorities which is declared illegal. With these observations all the writ petitions are accepted with no order as to costs. M.H./A-2/L Petitions allowed.