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Petitioner: AAMIR JUNAID VS Respondent: GOVERNMENT OF THE PUNJAB through Chief SecretaryHonorable Justice Ijaz ul AhsanHafiz Tariq Naseem,Faisal Zaman Khan
2014 P L C (C.S.) 1
[Lahore High Court]
Before Ijaz ul Ahsan, J
AAMIR JUNAID and 143 others
Versus
GOVERNMENT OF THE PUNJAB through Chief Secretary and 5 others
Writ Petition No.12113 of 2010, decided on 19th June, 2013.
(a) Constitution of Pakistan---
----Arts. 4, 10-A, 25 & 199---Constitutional petition---Revenue Department---Naib Qasids/Gardeners/Drivers/Telephone Operators/ Watchmen/Junior Clerks, posts of---Appointments on such advertised posts on contract basis through Departmental Recruitment Committee---Issuance of appointment letters to petitioners on 7-4-2010 and joining their respective services after having been interviewed and selected by such Committee---Termination of services of petitioners vide order dated 31-5-2010 without notice and personal hearing alleging their appointments having been made without observing codal formalities---Department's plea was that District Officer (R) was Appointing Authority and due to his going on leave during recruitment process on account of illness of his father, Deputy District Officer (R) had attended such Committee and signed appointment letters of petitioners, thus, DDO(R) could not exercise powers of DO(R) being an appointing authority, which rendered recruitment process irregular and illegal; and that department had initiated disciplinary proceedings against DDO(R) for his such illegal acts---Validity---Two Members out of five Members of such Committee in their comments filed in Court had conceded to have interviewed petitioners, considered their suitability and recommended their appointments on merits according to contract policy---Nothing was available on record to show issuance of show-cause notice to petitioners or initiation of disciplinary proceedings against them---Record showed that while proceeding on leave, DO(R) being appointing authority had authorised DDO(R) to act in his place and represent him in such Committee, who acted accordingly for being deputized in place of DO(R)---DO(R) had defended his act of delegating powers to DDO(R) and appointments made on his behalf under signatures of DDO(R)---Recruitments, therefore, had been made by a duly appointed Committee, which had owned and defended process of recruitments, whereas issuance of appointment letters to petitioners was merely a formality---Petitioners had no knowledge about working of Government Departments, rather they had acted bonafidely in making applications for recruitment against respective posts---Petitioners after having been selected by such Committee could not be deprived of their accrued valuable rights without due process of law merely on basis of such hyper technical objection of department and that too in absence of any fault on their part---Petitioners had not been alleged to be unqualified for respective posts etc.---Department was legally and constitutionally obliged to have issued notice to petitioners and provided an opportunity to defend themselves in a meaningful manner, but they had been deprived of their such right without just cause---Petitioners, though appointed on contract basis, were entitled to be treated fairly in terms of Arts.4 & 25 of the Constitution---High Court as guardian of constitutional rights of citizens could interfere in a matter involving denial of such rights to them by State functionaries---Courts would jealously and vigorously guard principles of natural justice, which had been violated by department---Record showed that DDO(R) had been exonerated of charges levelled against him in inquiry proceedings regarding appointment of petitioners---High Court set aside impugned termination order while directing department to re-process cases of petitioners by adopting suggested procedure.
Saiyyid Abul A'laMudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Fauji Foundation and another v. Shamimur Rchman PLD 1983 SC 457; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, through Prime Minister and another PLD 1989 Kar. 404; Said Karim v. Inspector-General of Police, N.-W.F.P., Peshawar and another 1998 PSC (CS) 337sic; Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266; Naubahar Ali v. Vice-Chancellor and others 2010 PLC (C.S.) 783; Khurram Shahzad and 56 others v. The District Education Officer (Colleges) Sialkot and 3 others 2010 PLC (C.S.) 406; Shahid Mahboob Rana and another v. Additional District Judge, Faisalabad and 2 others 2006 PLC (C.S.) 707; Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303; Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others 2007 PLC (C.S.) 179 and Dr. M. Sohail Karim Hashmi v. Federation of Pakistan, through Secretary, Ministry of Health and another 2009 SCMR 1472 rel.
(b) Constitution of Pakistan---
----Arts. 4 & 25---Civil service---Termination of---Contract employees---Scope---Such employees would be entitled to be treated fairly in terms of Arts.4 & 25 of the Constitution.
Saiyyid Abul A'laMudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673; Fauji Foundation and another v. Shamimur Rchman PLD 1983 SC 457; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, through Prime Minister and another PLD 1989 Kar. 404 rel.
Hafiz Tariq Naseem for Petitioners.
Faisal Zaman Khan, Addl. A.-G. along with Nadeem Ashraf, Senior Member (BOR) and Zulfiqar Ali, Director Legal (BOR) for Respondents.
Date of hearing: 19th June, 2013.
JUDGMENT
IJAZ UL AHSAN, J.--- Pursuant to an advertisement in daily newspapers on 18-10-2009, the petitioners applied for the posts of Naib Qasids/ Gardeners/ Drivers/ Telephone Operators/ Watchmen/ Junior Clerks. Pursuant to the applications received, call letters were issued to the applicants. Tests were conducted whereafter the selection committee interviewed the petitioners and appointment letters were issued to them on 7-4-2010. According to the terms and conditions of the appointment letters, the petitioners were appointed for a period of three years. The petitioner joined their respective services. However, subsequently vide order dated 31-5-2010 ("Impugned Order"), their services were suddenly terminated on the ground that they had been appointed without observance of codal formalities.
2. The petitioners approached this Court. The respondents were called upon to file their comments. In their comments, respondents Nos.1 and 2 have taken the position that the petitioners were appointed in violation and without fulfilling the codal formalities. However, respondents Nos.3, 4 and 5, who have also filed their parawise comments, have stated that they were the members of the selection committee, had conducted interviews and after considering their suitability had recommended appointment of the petitioners on merit and in accordance with the contract policy.
3. The learned counsel for the petitioners submits that the impugned order is in violation of the rights guaranteed to the petitioners under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. He maintains that neither any notice was served on the petitioners nor were they granted personal hearing. Even if the petitioners had been employed on contract basis, they were entitled to fair treatment and their rights under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan were violated. The learned counsel adds that the petitioners were also entitled to a fair trial under due process of law. In support of his contention, reliance has been placed by the learned counsel for the petitioners on Saiyyid Abul A'laMudoodi and others v. The Government of West Pakistan and others (PLD 1964 SC 673), Fauji Foundation and another v. Shamimur Rchman (PLD 1983 SC 457), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, through Prime Minister and another (PLD 1989 Karachi 404).
4. In support of his contention that the petitioners despite being contract employees were entitled to notice, the learned counsel has placed reliance on Said Karim v. Inspector-General of Police, N.-W.F.P., Peshawar and another (1998 PSC CS 337 sic).
5. The learned counsel for the petitioners further argues that the honourable Supreme Court of Pakistan has held that even if a person is to be condemned for misconduct and even if he is employed on contract basis or probation, he is entitled to fair trial and an opportunity should be granted to him to clear his name.
6. The learned counsel points out that in case the petitioners had been appointed in violation of the codal formalities as submitted in the parawise comments of respondents Nos.1 and 2, they could not have been condemned unheard. The petitioners were entitled to due process of law, which provides for a show-cause notice and a meaningful hearing to the aggrieved party. Reliance is placed on Muhammad Aslam v. Vice-Chairman and others (2010 PLC (C.S.) 266), Naubahar Ali v. Vice-Chancellor and others (2010 PLC (C.S.) 783), Khurram Shahzad and 56 others v. The District Education Officer (Colleges) Sialkot and 3 others (2010 PLC (C.S.) 406) and Shahid Mahboob Rana and another v. Additional District Judge, Faisalabad and 2 others (2006 PLC (C.S.) 707). The learned counsel adds that even if the appointments were irregular on account of lapses on the part of the appointing authority, the said lapses could not have been made basis to deprive the petitioners of the rights guaranteed to them under the Constitution as well as the law. Reliance is placed in this regard on Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303), Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others (2007 PLC (C.S.) 179) and Dr. M. Sohail Karim Hashmi v. Federation of Pakistan, through Secretary, Ministry of Health and another (2009 SCMR 1472). The learned counsel, therefore, submits that the impugned order cannot sustain. He argues that the petitioners are entitled to be reinstated.
7. The learned Additional Advocate General on the other hand submits that the appointments were made on 7-4-2010. The same were terminated on 31-5-2010. He points out that the letter of termination was signed by the DOR Chiniot. He maintains that after the posts had been advertised, a meeting of the Departmental Recruitment Committee was held between 16-11-2009 to 21-11-2009. In this regard he has drawn my attention to notification dated 14-5-2004 in which Item No.viii provides for the constitution of committees at the district level. He points out that such committees are required to consist of the DCO, EDO, EDO (F&P), a representative of the appointing authority, i.e., the Member Board of Revenue and the District Officer etc. The quorum for holding such meetings is at least five members and decisions are required to be taken by majority. He submits that Mr. Maqbool Ahmad and Syed Zahid Hussain Jafri were appointed as representatives of the Board of Revenue to attend such meetings.
8. The learned counsel has also referred to letter dated 5-12-2009 issued by the Board of Revenue. Through the said letter the Board of Revenue has raised objections regarding the meeting of the Departmental Recruitment Committee held between 16-11-2009 to 21-11-2009. Reference has also been made to letter dated 19-12-2009 issued by the Board of Revenue to the DOR regarding the appointments and to submit a report. The learned counsel argues that despite report being called by the Board of Revenue, minutes of the meeting were issued on 21-11-2009, which were signed by EDO(R), District Officer (Finance and planning). DDO(R) Lalian also signed the minutes as member of the Committee.
9. It appears that vide letter dated 3-4-2010, the DCO called a fresh meeting of the Departmental Recruitment Committee on 6-4-2010. The aforementioned representatives of the Board of Revenue never attended this meeting. However, appointment letters were issued to the petitioners the very next day i.e. 7-4-2010.
10. The learned counsel for the respondent has drawn my attention to the appointment letters which have been signed by the DDO(R), Lalian, instead of DO(R), Chiniot, who according to the rules was the appointing authority. Reference has also been made to letter dated 4-12-2009 issued by the District Accounts Officer, Chiniot, addressed to the DCO wherein objections regarding the appointments had been raised. The learned counsel has also referred to letter dated 5-5-2010 issued by DO(R), Chiniot, to District Accounts Officer apparently in response to the aforesaid objections. In the said letter it has categorically been stated that no other person had been given charge of the post by the S.&G.A.D. Department to perform functions in his place. Further, the appointment letters were never signed by him. He, therefore, accepts no responsibility/liability for the appointments in question. Subsequently, vide letter dated 13-5-2010, the DCO issued a letter explaining the circumstances in which the DDO(R), Lalian was transposed to deputize for DO(R), Chiniot. It was stated that during the process of recruitment the father of DO(R), Chiniot, had fallen sick. The DO (R) had proceeded on leave from 16-11-2009 to 21-11-2009. It was, therefore, considered appropriate to co-opt the DDO(R) Lalian in his place to perform the same functions so as not to disrupt the process of recruitment which, according to him, would have led to discontentment and disappointment amongst the candidates who had travelled from far off areas. Vide letter dated 25-11-2009 the Board of Revenue directed the DOR to cancel the appointments. Consequently, vide letter dated 31-5-2010 the services of the petitioners were terminated for the reason that their appointments had been made without observing codal formalities.
11. The learned counsel has referred to ministerial service rules which appear to be relevant for the purpose of undertaking appointments in government departments. He has pointed out that for the appointments of Junior Clerks, Gardners, Naib Qasids, Farrashes and Malies etc., the appointing authority is DOR. He submits that the concerned officer in the present case was DOR, Chiniot, and his powers and functions could not have been transfered to DDO(R), Lalian.
12. Reference has also been made to letter written by Maqbool Ahmad and Syed Zahid Hussain Jafri to EDO(R) complaining that recruitments had not been made on merit and there had been irregularities in the recruitment process. It was on the basis of these complaints that the concerned department had written its letter dated 19-12-2009 calling upon the EDO(R) to stop the process immediately. He submits that despite clear and unambiguous instructions by the concerned department, the same were disregarded and the recruitment process was continued which culminated in issuance of appointment letters which had to be terminated/withdrawn subsequently. The learned counsel further argues that the Board of Revenue also recommended that disciplinary proceedings be initiated against the DOR and others who are involved in the aforesaid process.
13. I have heard the learned counsel for the parties and examined the record.
14. The respondents published advertisements in newspapers for appointments against posts of Naib Qasids/Gardners/Drivers/Telephone Operators/Watchmen/Junior Clerks etc. The petitioners applied for the said posts. Tests and interviews were conducted by a Selection Committee. Subsequently appointment letters were issued to the petitioners on 7-4-2010 appointing them for an initial period of three years. The appointment letters were acted upon. The petitioners joined their respective posts and started receiving salaries. Subsequently, they received letters of termination on 31-5-2010 informing them that their services had been terminated. The said action was taken on the ground that the appointments had been made without observing codal formalities.
15. It may be noted at the very outset that it is not the case of the respondents that the petitioners were recruited on the basis of political considerations or any financial corruption was involved on the part of the officials involved in the recruitment process. It has also not been argued that the petitioners were either not qualified or did not fulfill the criteria for appointment to the posts against which they were appointed. It is also not denied that appointment letters were issued in favour of the petitioners, they were allowed to join duty and they were paid salary for the period during which they performed services. The record does not indicate that any show cause notice or disciplinary action had been initiated against any of the petitioners. The learned Additional Advocate General has not denied that the petitioners were neither heard nor given any opportunity to defend themselves. The case of the respondents is that the Recruitment Committee was required to consist of the DCO, EDO, EDO (Finance and Planning), representative of the Board of Revenue and the District Office. The District Officer (Revenue) Chiniot, was the appointing authority of the petitioners under the rules. His father fell sick. Consequently he went on leave from 16-11-2009 to 21-11-2009. However, in order to ensure that the process of recruitment was not disrupted on account of his absence, the District Officer (Revenue), Chiniot, appointed the Deputy District Officer (Revenue), Lalian to act in this place and represent him in the meeting. The said functions were duly performed together with other members of the Recruitment Committee which included the EDO(R), District Officer (Finance and Planning) and DO (R), Lalian. It is also significant to point out that the meeting was also attended by the concerned DCO. All members of the Committee signed the minutes of the meeting on 21-11-2009 and there was consensus regarding appointments to be made. Vide letter dated 3-4-2010, a fresh meeting of the Departmental Recruitment Committee was called for 6-4-2010. Pursuant to the meeting dated 6-4-2010, appointment letters were issued to the petitioners on 7-4-2010. The appointment letters were signed by DDO(R), Lalian, who was deputizing in place of DO(R), Chiniot, who was the appointing authority under the rules.
16. It appears that objections were raised against the letters being signed by the DDO(R), Lalian. However, the District Officer, who was the appointing authority, defended his action, gave an explanation and took the position that there was nothing illegal about delegation of power of appointments made on his behalf under the signatures of DDO(R), Lalian.
17. The main argument advanced by the learned Additional Advocate-General is that the delegation was not valid. Therefore the appointment letters signed by the delegate were not valid letters.
18. I have carefully considered the argument of learned Additional Advocate-General. I find that at best it is a hyper technical argument which is neither adequate nor sufficient to justify the mode and manner adopted by the respondents to terminate the services of the petitioners. Even otherwise the act of issuance of appointment letters was a mere formality and was the culmination of the process of recruitments carried out by a duly appointed committee, which has defended and owned the process. Valuable rights had, therefore, accrued in favour of the petitioners, which could not be taken away on the basis of mere technicalities more so where there was no fault on the part of the petitioners.
19. The petitioners who have no insight or knowledge of the working of Government Departments, bona fide filed applications for recruitment against certain posts in different categories advertised by the respondents. Their applications were processed, applicants found suitable were called for interview by a panel consisting of various officers who short listed the petitioners for appointment. With the consensus of all concerned the list of successful candidates was made and appointment letters were issued by a person who was prima facie authorized to do so. It has nowhere been alleged that the petitioners did not qualify for the posts against which they were appointed or there was foul play, favouritism, or financial corruption involved. Nevertheless, on account of rigid or implausible positions taken by the departmental functionaries against each other, the employment of the petitioners, who are poor citizens of the country, were put to an end without any just or fair reason or justification. I have noticed with grave concern that while strong and divergent positions were taken regarding validity or invalidity of actions taken by various departmental functionaries, no heed was paid to the plight of the petitioners who faced the hatchet without any fault on their part. Further State functionaries totally lost sight of the fact that once the petitioners had been appointed, valuable right guaranteed to them under the Constitution of Islamic Republic of Pakistan, 1973 had accrued in their favour which could not lightly be taken away without due process of law. Whether the petitioners were validly or invalidly appointed was subject to the rights of the petitioners to due process of law as enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan. Even if the petitioners had been appointed on contract basis, they were to be accorded fair treatment under the law in terms of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. In this regard reference may usefully be made to Saiyyid Abul A'laMuddodi and others v. The Government of West Pakistan and others (PLD 1964 SC 673); Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457); Sharaf Faridi and 3 others v. Federation of Pakistan through Prime Minister and another (PLD 1989 Karachi 404).
20. The principal argument of the learned Additional Advocate-General is that the appointments were in violation of the rules. Even if for the sake of argument, the stance taken by the learned Additional Advocate-General is taken to be correct, the same did not mean that the petitioners were not entitled to their due process rights which are guaranteed under the Constitution. Even in that eventuality the department was under a legal and Constitutional obligation to issue notice, grant an opportunity to the petitioners to defend themselves in a meaningful hearing. In failing to meet the minimum criteria which is necessary to uphold any departmental action, the Constitutional rights of the petitioners were violated. In such circumstances, this Court cannot fold its arms and stand as a helpless bystander. This Court is a guardian of the Constitutional rights of citizens. It is obligatory upon it to interfere where such rights are denied to them by state functionaries. In support of this proposition reference may be made to Muhammad Aslam v. Vice-Chairman and others (2010 PLC (C.S.) 266); Naubabhar Ali v. Vice-Chancellor and others (2010 PLC (C.S.) 783); Khurram Shahzad and 56 others v. The District Education Officer (Colleges) Sialkot and 3 others (2010 PLC (C.S.) 406) and Shahid Mahboob Rana and another v. Additional District Judge, Faisalabad and 2 others (2006 PLC (C.S.) 707).
21. The Hon'ble Supreme Court of Pakistan in various celebrated judgments has held that even if an appointment is illegal, a citizen cannot be deprived of a right which is guaranteed to him under the Constitution of Islamic Republic of Pakistan. In this regard reliance can be placed on Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303); Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others (2007 PLC (C.S.) 179) and Dr. M. Sohail Karim Hashmi v. Federation of Pakistan, through Secretary, Ministry of Health and another (2009 SCMR 1472). To be treated in accordance with law and the right of due process lies at the foundation of the concept of rule of law. It has been recognized as a fundamental right in the scheme of our constitution. It is an admitted fact that the petitioners were deprived of this right without just cause.
22. On the basis of principles of law enunciated above, in the facts and circumstances of the present case, I am in no manner of doubt that the actions of the departmental functionaries whereby the services of the petitioners were terminated suddenly and abruptly without so much as a show-cause notice, an opportunity of being heard and a chance to defend themselves does not meet even the basic benchmarks against which state actions are to be judged. These are important and fundamental principles of natural justice, jealously and vigorously guarded by Courts. These mandatory requirements…
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