' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--This appeal is directed against the original impugned order dated 13-7-2002 passed by respondent No,2, whereby appellant was awarded major penalty of removal from service.
2. Concisely, the facts leading to the instant appeal are that appellant was lastly posted as Medical Officer, Sindh Government Lyari General Hospital, Karachi. He was served with a show-cause notice dated 12th September, 2000, as under:-- "The Medical Superintendent, Sindh Government Lyari General Hospital, Karachi has reported that you have been absent from duties unauthorizedly w.e.f. 1-6-2000 till to date.
' This act tantamounts to misconduct on your part."
' In his reply, appellant explained the reasons of his absence that due to serious illness of his widow mother, he being the only son was looking after her and that he also submitted application for 10 days causal leave followed by application for grant of 120 days. His reply was not found satisfactory, as such, he was served with a final show-cause notice dated 4-12-2002. Ultimately, vide original impugned order assailed herein, appellant, with the approval of authority competent, was awarded major penalty of removal from service. Being aggrieved by the said punitive order.
Appellant preferred departmental appeal to respondent No.4, which remained unresponded.
3. In support of appeal, it was argued that disciplinary proceedings initiated against appellant were opposed to facts, justice and in derogation of mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973, inasmuch as at no stage the department attempted to verify the truthfulness or otherwise of the stand taken by the appellant in his defence or he was given any opportunity to prove his innocence. It was contended further that appellant was called for personal hearing by the respondent No.2 on 25-6-2001 and after hearing appellant, the respondent No.2 while taking lenient view exonerated appellant's earlier absence and he was given posting at Rural Health Centre, Jarwar District Ghotki, but appellant due to certain un-avoidable circumstances could not join his new place of posting. And thereafter without issuing any further show-cause notice or any chance to defend himself, he was ousted from service through the impugned order. Which is neither maintainable nor sustainable and may be set aside.
4. In rebuttal, learned Asstt. A.-G. Submitted that appellant remained absent unauthorizedly without prior intimation and permission. However, the department by taking lenient view posted him at Rural Health Centre, Jarwar. District Ghotki but instead of honouring the order of competent authority, appellant without any justice and plausible reasons failed to join his place of posting as reported by the Executive District Officer (Health), Ghotki and that the appellant was again called by respondent No.3 for personal hearing but appellant chose to remain absent and could not avail the chance of personal hearing to explain the reasons of non-joining. In these circumstances, learned Asstt. A.-G. Stated, that appellant was rightly awarded major penalty which calls for no interference.
5. We have considered the above submissions and have perused the case papers placed on the record. It is the case of appellant that while he was performing his duties a Lyari General Hospital, his widow mother became seriously ill. He, therefore, took her to hospital for necessary medical treatment. Initially he applied for 10 days causal leave followed by another application for 120 days earned leave. No order of acceptance or otherwise was passed by the competent authority on the said application. It appears that appellant remained busy in providing medical treatment to his ailing widow mother. In support of such contention he produced medical prescription medical test reports, copies of E.C.G. Etc. Admittedly, leave applied for by him was neither granted nor refused, nor the record indicates that appellant before issuance of show-cause notice was ever required to resume his duties. In his circumstances, it was imperative duty of the department of have enquired the matter about the genuineness or otherwise of ailment of appellant's widow mother but instead of doing so, appellant was served with show-cause notice followed by final show notice. Perusal of the record further reveals that appellant was given personal hearing by respondent No.2 on 25-6- 2001 and by taking lenient view appellant's posting order at Rural Health Centre, Jarwar, District Ghotki was issued on 28-12-2001. Meaning thereby that appellant was impliedly exonerated from the charge of absence from duties from 1-6-2000. He, however, failed to resume his duties at his new place of posting. Thereafter, without giving him any further show-cause notice, he was removed from service. This action on the part of respondent No.3 was in violation of the mandatory provisions of the Sindh Civil Servants (E&D) Rules, 1973, coupled with principles of natural justice.
6. It is well-established principle of law that any order passed in derogation of the prescribed procedure, the same has no legal sanctity in the eye of law. Likewise it is a settled proposition of law that in all proceedings by whomsoever held whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in the consequences affecting persons or property or other right of the person concerned". In the instant case too, neither the prescribed procedure was followed as stated above nor the principles of natural justice were complied with. The order impugned herein, thus, cannot be sustained.
7. Accordingly, the appeal is accepted and the impugned order is set aside. The appellant is directed to be reinstated in service. The intervening period be treated as "leave of kind due". The department, however shall be at liberty to proceed against the appellant strictly in accordance with the provisions embodied in the Sindh Civil Servants (E&D) Rules, 1973.
8. Announced in open Court.
Appeal allowed.
2005 PLC (C.S.) 731 [Lahore High Court] Before Syed Zahid Hussain, J SHAMAILA SHAHZADI versus CHAIRMAN, TEVTA and 8 others Writ Petition No.18218 of 2004, decided on 17th March 2005.
(a) Constitution of Pakistan (1973)- --Arts. 212 & 199---Constitutional petition---Service Tribunal---Jurisdiction of---Case of direct recruitment/appointment---Petitioner was not blessed with the status of civil servant--- Jurisdiction of Service Tribunal could not be invoked in circumstances. [p. 734] A Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 rel.
(b) Technical Education and Vocational Training Authority Ordinance (XXIV of 1999)--- ----Ss.10 & 14---Constitution of Pakistan (1973), Art.199--- Constitutional petition---Recruitment--- Standing Operating Procedures, following of---Expression 'as may be prescribed' used in S.10 of Technical Education and Vocational Training Authority Ordinance, 1999---Impact---Petitioner was a candidate for the vacancy advertised by the Technical Education and Vocational Training Authority and she stood first in the merit list---Petitioner was denied appointment letter on the ground that under Standing Operating Procedures approved by the Authority, there should have been at least two candidates to be interviewed and there was no second candidate---Authority re-advertised the vacancy and appointed the respondent---Validity---Exoression 'as may be prescribed' used in S.10 of Technical Education and Vocational Training Authority Ordinance, 1999, had not been defined and it could possibly be construed as having reference to the Regulations laying down procedure for recruitment---Legislature could not be assumed to have intended to vest the Authority beyond Rules/Regulations, with such arbitrary power or conferred such unguided and unbridled discretion to lay down such a procedure or conditions, which could militate against the principles of fairness, rationality and reasonableness---No such intention, which was likely to produce unjust consequences could be imputed to the lawmaker---Candidate like the petitioner who had competed with others and stood on top of merit had every legitimate expectancy to be appointed to the post she had applied for---Petitioner could not be penalized or made to suffer for the reason that there was no covering candidate recommended by the Selection Committee---Such clause of Standing Operating Procedure could not be invoked to deprive the petitioner of the appointment---Competition was open and transparent amongst those who had applied and taken part in the selection process pursuant to public advertisement published in a widely circulated newspaper---Petitioner had been deprived of the appointment to the post applied for by her on untenable grounds and having topped the merit list she was entitled to be appointed--- Action of the Authority refusing her the appointment was of no legal effect and the later selection in which respondent was purported to have been appointed was unwarranted by law---High Couft was informed that another post of same status was lying vacant in the same district---High Court directed the Authority to consider the adjustment of the respondent as against the vacant post--- Petition was allowed accordingly. [p. 735, 737] B & E
(c) Good governance--- ----Rule of law and justice---Implementation---Principles---To maintain a practical and humane system of statutory law, at occasions, meeting of certain strict requirements have many a times been excused, overlooked or condoned---To enforce a law in its letter often produces a manifest injustice---Prime object of all systems where rule of law and justice is to prevail, is to ensure justice based on fairness, reasonableness and justness, without any taint. [p. 736] C The Pakistan Barbers'
Association (Regd.), Lahore v. Province of Punjab through Directorate of Labour Welfare, Punjab, Lahore and another PLD 1976 Lah. 769 rel.
(d) Constitution of Pakistan (1973)--- ----Art.199---Constitutional petition---Maintainability---Locus standi--- Petitioner was a candidate for the vacancies advertised by the Technical Education and Vocational Training Authority and she stood first in the merit list---Petitioner was denied appointment letter on the ground that under Standing Operating Procedures approved by the Authority, there should have been at least two candidates to be interviewed and there was no second candidate---Authority re-advertised the vacancy and appointed the respondent---Plea raised by the Authority was that the petitioner did not acquire any vested right to the appointment---Validity---Plea of the Authority negated the most cherished objective of meritocracy---Petitioner had in the selection topped the merit list and thus earned the right to be appointed---Selection process could not be shelved to deny petitioner the right so acquired, nor new process could be launched--- Any person could not be denied the right acquired, simply for the reason that some policy would be infringed---Court was bound to remedy the wrong by redressing the grievance---Petition was maintainable in circumstances. [p. 736] D Muhammad Azeem Sheikh for Petitioner.
Aamir-ur-Rehman Addl. A.-G and Aamir Iqbal Basharat for Respondent No.9.
Date of hearing: 17th March, 2005.
' On 6-4-2004 an advertisement appeared in the daily 'fang', Lahore for filling up certain vacancies in Technical Education and Vocational Training Authority (TEVTA), inviting applications from the candidates possessing requisite qualifications. At Serial No.2 of the advertisement was the post of Principal (BS-17) at Government Vocational Institute of Women, Nankana. Pursuant to that the petitioner applied for the said post of Principal along with others. She was called for interview to be held on 16-6-2004 vide letter dated 7-6-2004, which however, as stated by the Departmental representative, could not be held. She was again called for interview vide letter date 10-7-2004 to be held on 17-7-2004. She appeared therein along with others and according to her was successful and recommended for appointment by the Selection Committee. While she was awaiting the appointment letter another advertisement appeared on 3-9-2004 in the newspaper for the same post. Flabbergasted and prompted by which Writ Petition No.14981 of 2004 was filed by her seeking direction to be appointed and that the subsequent advertisement for applications against the same post be declared as illegal. The said petition was disposed of on 16-9-2004 with the observation that she should approach the Departmental Authority. It was observed that "the grievance of the petitioner that having appeared twice for interview as per call letter issued to her why she has not been selected will be duly attended to by him and disposed of within a fortnight in accordance with law. The process if undertaken pursuant to the later advertisement will be subject to the outcome of the representation to be decided by the Secretary of the Administrative Department". She then filed a representation which was disposed of vide order dated 21-10-2004 by respondent No.2 rejecting the same that "The petitioner was not selected according to SOP for recruitment. 2 recommendations are required i.e. Principal candidate and alternate candidate for each post. Petitioner was standing on merit but was not appointed on account of above condition of SOP i.e. She did not have a covering candidate". This petition has been filed in the context for the redressal of her grievance.
2. Since in the later process Miss. Fouza Bano was appointed in the meanwhile vide order 21-12- 2004, amended petition was then filed impleading her as party and assailing her appointment.
3. The learned counsel for the parties have been heard in the matter.
4. In the reply filed by the official respondents a preliminary objection as to the maintainability of the present petition invoking the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 has been raised. It has, however, been admitted in the reply that "The petition was standing on merit but was not appointed on account of above condition of SOP as she did not have a covering candidate." The learned Additional Advocate-General Punjab has endeavoured to support and defend the impugned order on the ground that the Standing Operating Procedure (SOP) was laid down by the Authority under Punjab Technical Education and Vocational Training Authority Ordinance, 1999 (Ordinance XXIV of 1999). He has sought support from the provisions of section 10 of the Ordinance that the manner of employment and conditions of service can be laid down by the Authority and having done so the action is lawful and cannot be assailed. According to him the petitioner has no vested right and that it is such a policy matter in which the Court should not interfere. The learned counsel for respondent No.9 while supporting the learned Additional Advocate-General Punjab contends that in the second process of selection, respondent No.9 had topped the merit list who had been validly selected and appointed.
5. Insofar as the objection resting upon the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as to the maintainability of the petition is concerned, the same has no merit A as it was a case of direct recruitment/appointment. The petitioner had yet not been blessed with the status of a civil servant. Reference in this context may be made to Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382) wherein it was observed that "In order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, " It was further observed that "The appellant having applied but not selected for the post could not acquire the status of a civil servant within the meaning of the Act.
He was, therefore, in our view, not entitled to file an appeal before the Tribunal". The bar of jurisdiction as envisaged by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 cannot, therefore, be pressed into service by the respondents.
6. Having dealt with the preliminary objection as to the maintainability of the petition that bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not attracted to the instant case and petition before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable. The pivotal point that emerges for consideration is as to how for the Authority was justified to decline appointment of the petitioner by invoking a procedure laid down by it known as Standing Operating Procedure (SOP). For this purpose brief survey of the provisions of Ordinance may be appropriate. The Punjab Technical Education and Vocational Training Authority, Ordinance 1999 (Ordinance XXIV of 1999), which statedly has remained as it is and is in force, was promulgated on 7-6-1999. Under section 2 thereof the Government was empowered to establish an Authority to be called the Technical Education and Vocational Training Authority, of the Punjab (TEVTA). Such Authority is a body corporate, having perpetual succession and common seal. Section 3 deals with the constitution of the Authority whereas section 4 with its functions. It is section 10 of the Ordinance, in particular its subsection (1), which has been the mainstay of the Authority. It may be reproduced which reads as follows:-- "(1) The Authority may employ such officers, advisors, consultants and employees in its service as may be necessary for the efficient performance of its functions in such manner and on such terms and conditions as may be prescribed by the Authority" (underlined due to relevance).
' Section 13 of the Ordinance enables the Government to make rules for carrying out the purposes of this Ordinance whereas section 14 empowers the Authority to make regulations for carrying out the purpose of the Ordinance "subject to this Ordinance and the rules framed thereunder". Minutes of 11th meeting of the Authority held on 19-2-2004 have been cited to show that Standing Operating Procedure was approved by the Authority as Item No.9 in that meeting. Thus Standing Operating Procedure dated 3-3-2004 is said to have been enforced. It is clause "h" of Selection Procedure, which has been invoked against the petitioner to deprive her the appointment. It reads like this "In all the cases mentioned above the Selection Board will propose two names in order of merit for each post for final approval by the respective Appointing Authority who may wish to interview them". Now the perusal of the scheme of law i.e. Punjab Technical Education and Vocational Training Authority Ordinance, 1999 leaves no manner of doubt that whereas the Authority could employ officers and employees in such manner and on such terms and conditions as may be prescribed by the Authority, no regulations are shown to have been framed, as required by section 14 of the Ordinance. Since the expression as may be "prescribed" used in section 10 has not been defined in the Ordinance it can possibly be construed as having reference to the Regulations laying down procedure for recruitment. It cannot be assumed that the legislature intended to vest the Authority, beyond Rules/Regulations, with such arbitrary power or confer such unguided and unbridled to lay down such a procedure or conditions, which could militate against the principles of fairness, rationality and reasonableness. No such intention, that is likely to produce unjust consequences can be imputed to the lawmaker. A candidate like the petitioner who had competed with others and had admittedly stood on top B of merit had every legitimate expectancy to be appointed to the post she had applied for. Nevertheless for the reasons that there was no covering candidate recommended by the Selection Committee she was not appointed. She certainly could not be penalized or made to suffer for that, nor clause "h" of Standing Operating Procedure be invoked to deprive her the appointment. Suffice it to state that it was open and transparent competition amongst those who had applied and taken part in the selection process pursuant to public advertisement dated 6-4-2004 published in a widely circulated newspaper. One is left wondering that having made public advertisement for the post and holding interviews of the candidates in which process the petitioner had met the eligibility criteria and topped the merit list why another advertisement was issued. I refrain from making any comment as to the assertion of the petitioner that such an exercise was undertaken merely for enabling someone else to apply and be selected for the post, by ignoring the petitioner. There is reasonable apprehension that non-availability of a covering candidate was made as a mere subterfuge to ignore the petitioner, as such a condition was not even part of the advertisement dated 6-4-2004. This whole exercise smacks of arbitrariness and unjust manner she was dealt with. It may be observed that to maintain a practical and humane system of statutory law, at occasions, meeting of certain strict requirements have many a times been excused, overlooked or condoned. For, often to enforce a law to its letter produces a manifest injustice. Needless to state that the prime object of all systems' where rule of law and justice is to prevail, is to ensure justice based on fairness reasonableness and justness, without any taint. In the Pakistan Barbers' Association (Regd.), Lahore v. Province of Punjab through Directorate of Labour Welfare, Punjab, Lahore and another (PLD 1976 Lahore 769) it was observed that if the provision of law was being administered in an arbitrary, oppressive, partial or unjust manner, the action taken thereunder could be struck down and declared as unlawful.
7. The contention of the learned Additional Advocate-General Punjab that the petitioner did riot acquire any vested right to the appointment, has not impressed me as it negates the most cherished objective of meritocracy. The petitioners had in the selection topped the merit list and thus earned the right to be appointed. That selection process could not be shelved to deny her the right so acquired, nor new process could be launched. Suffice it to observe that a person cannot be deprived of the right acquired, simply for the reason that some policy will be infringed. It is the duty of the Court to remedy by the wrong by redressing the grievance..
' Thus examining the matter from any angle I am led to the conclusion that the petitioner has been deprived of the appointment to the post applied for by her on untenable grounds and having topped the merit list she was entitled to be appointed. The action of the Authority refusing her the appointment as Principal, Government Vocational Institute (W), Nankana is of no legal effect and the later selection in which respondent No.9 is purported to have been appointed is held to be unwarranted by law. I am informed that another post of same status is lying vacant in the same District. It is left open for the Authority to consider the adjustment of respondent No.9 as against the same, if deemed proper.
' The petition is accepted accordingly. Since costs have not been claimed, I make no order as to costs.