PRI5ER HAFIZ TARIQ NASIM, J. In vieW of the-similinfylpf facts and questions of law, I propose to decide, $11.
The Writ Petitions Nos. 352/2007, 1080/2007, 7960 to 7971/2007, 2225/2007, 6723/2007, 6724/2007, 6828/2007, 8189/2007, 7028/2007, 6292/2007, 7993/2007' and 11015/06 ,through this single order.
2. In :response to the advertisement in Press all: the petitioners applied, for the advertised posts, they were called for interview by the dulydonstituted ComMittee, who after examining .The eligibility of the -petitioners, determined their suitability, recommended for their appointments and ultimately the petitioners were appointed but of course on tr ct_ basis for period of three years.
Inthe Near 2006. c ,idingly the petitioners joined, performed:their duties but unforkinzitely without any complaint whatsoever all of them e were .Pusted from service throug the impugned orders whereby th-peiitioners' appointments wereicanceiled the date of/A. Issuance treating these appointments as illegal and Without-Melt ----.
3. AggrieVedi by this, the petitioners filed departmental represent*n$/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 canceling the appointment orders, neither the contract was 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 have no right for continuation in service.
6: Arguments heard; record.Perused.
7. So far the objection of law applicability and non-maintainability of Master and Servants 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 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 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 male fides exercise of statutory authority."
La! Din v. Vice-Chancellor and others (1994 PLC (CS) 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. P.I.A.0 and another. (1994 SCMR 2232), it is held that: "Maxim "audi alteram pattern" 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, Muftan 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 bonds, may take effect with exception of an action which was ma/a 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 1034 that where a removal order of such an employe 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 hearitV before, any Order adverse to his interest was passed by virtue oriprinciple of audi alteram parterre which was the-least requirements."
Muhammad. Mushtaq v. ,Chancellor; Government College University, FaiSalabad -(2005 KC'
(C:8).1300), it is held: "Absolute power and authority cannot be arrogated to or exercised by any State:furictionary;--- Concept of Master and Servant relatiorlShip 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 Hon'ble Supreme Court of Pakittan reported as `Mrs. Munawar Sani v. Director Army' Education (1:991 'SCMR 135). This case was related. To 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 Hon'ble.
Supreme Court of Pakistan and the. Same was resolved .In.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-doWh 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 to an aggrieved party albeit an 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: th-at allegedly some illegality or irregularities were found by the authOrities inthe original orders of the petitioners' appointments. In such like controversy it is, well-settled law laid down .By , the Hontle. S.Upreme ,pouq 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 - jCdg-Meht-:Pf Hon'ble,SuPrerne Court of Pakistan 'reported as 114400iiir.Nari knjecli2. WAPDA (1998 PSC 337)
13. ;: AdMittedly itt the -p,Pesent cases_ the JeCord :produced by the departrrientaLrepresentgve \reve\als that -before passing the jmpugnedd :Ordet-heither any inqUiry was condixted nO1',,the'POitignei*.,Were served-with Showcause even -they 'vere, -not heard by the Atithonties concerned,' meaning- thOrpb' that ' the petitionerS were conderrined unheard whichotherwise is a violation, of law laid down in Pakistan International Airlines (PIAC) through its Chairrnan,end,othersy. Nasir Jamal Malik and,others, (2001 PSC 1).
14. .1t, 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 'ribt.:,be',:ecalled in View-of well-established principle of lriCi4 POenitentiae,* this principle reliance can `be'pleced on 1Liaquat A.I -iMernon end.Othersv: Federation of f.:)akiStan end Others ',(PLO 1994' SC. ,556), ;:Secietary to ',GoyernMentOfN711Y,E.P. And another.V. MuheMmadNawaz and another,(P.LD 1996 SC 837), Rukhsar A.I and 9,1,athers Government. Of 1\1-.WF.F). -through' Secretary Education, POSheWar,and'-3 others (2003' PLC (CS)
1453), lkistan ..International ;Airlines Corporation ,through Chairman and others v. Shahzad Farooq Malik and another (2004 SCMR (.L.R.
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 Hon'ble 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: Puniab 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,F.P., Peshawar and others (2007 PLC (CS) 179), wherein it is held that instead of penalizing the employees, the responsibles 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 petitioners 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. .