It is inter alia contended that the petitioner being qualified were appointed as computer operators after fulfilling all codal formalities vide separate letters dated 01.12.2007. The petitioner joined duties vide their separate joining reports which are available on the record of this writ petition as Annex- D-1 to D-36. Further submits that vide the first impugned order dated 06.122007. "Annex D of the writ petition, the appointment order dated 01.12.2007 was withdrawn by mentioning there in two grounds:
(i) In pursuance of Notification No, F/2(12)2007 from Election Commission of Pakistan. In the event of conduct of Election 2007-8 and
(ii) Upon verbal directions of DCO Layyah. and that subsequently vide, order dated 22.2.2008 the respondent EDO Health Layyah withdrew the first impugned order, referred to above and the petitioners were allowed to rejoin their duties which order too was withdrawn vide second impugned order dated 01.02.2008, resultantly the original impugned order stood restored and the appointment orders issued in favour of the petitioners stood cancelled/withdrawn.
2. The learned counsel for the petitioner with vehemence contends that prior to withdrawal/cancellation of appointment order neither any show-cause notice was given nor any opportunity of personal hearing was afforded to the petitioners nor even the respondent/defendant has paid salary to the petitioners for the period they actually performed the duties. Thus prayed the impugned order having been passed without applying judicious mind and being patently illegal may be set aside and the respondents may be directed to allow the petitioners to join duties with all back benefits.
3. Conversely the learned Additional Advocate-General upon instructions submits that the basic qualification for these posts was B.C.S in view of provisions of the Punjab Health Department Ministerial Establishment Recruitment Rules 2003 wherein it was provided that Computer Operator, who are to be employed in Basic Scale No, 15 should possess basic qualification as B.C.S or equivalent qualification, from recognized University, with at least three years experience in the field of computer work. Further submits that these appointments were made at the time when the election process was on and the Election Commission of Pakistan had directed that no such recruitment be made during the Election process; that in compliance with the notification issued by the Election Commission of Pakistan those orders were recalled vide letter dated 06.12.2007 however subsequent thereto their appointment orders were restored but upon scrutiny of Educational certificates and after getting verification from Higher Education. Commission to the effect that their educational certificates were not equivalent to B.C.S. nor the degree was issued by the recognized University and even they did not have experience of three years in the relevant field as such since the writ petitioners were not qualified even on merits, therefore, the process of appointments made during the ban on such like recruitment was struck down after receiving instructions from the Government.
In response to the query as to whether any action against delinquent officer, has been taken who allegedly made appointments in violation of law, rules and instructions of the high-ups or the policy, the learned law officer very candidly conceded that no action was taken.
5. The learned Additional Advocate General further submits that the petitioner only worked for six days. In response to a query that the respondents have come out altogether with a new stance, as the reasons assigned in the impugned order are different whereas now the respondents are trying to set up a different case, the learned Addl. A.G submits that the petitioners were not at all qualified for such appointments and since the entire process of recruitment was tainted with mala fide of the Recruitment Committee as they did not adopt the procedure prescribed and further they issued the orders during the imposition of ban and also in violation of the notification of Election Commission of Pakistan, therefore, the pleas being legal can be raised at any time refers to Condition No, 9 of the appointment order.
6. Conversely the learned counsel for the petitioner in rebuttal submits as follows:--
(i) The candidates were to be selected through walk and interview by the Selection Committee (Annex. A Page 10 of the writ petition).
(ii)No criteria whatsoever was given in that advertisement or notice and the process of interview and test was completed on 06.11.2007.
(iii)During this process the criteria which was set up and required as qualification from the candidates was B.C.S or qualification of equivalent status.
(iv)In the similar case recruitment was made by the Executive District Officer Health D.G Khan and the criteria of determination of the equivalence of B.C.S for the purpose of computer operators B.S 15 and B.S 12 was declared by the office of Executive District Officer Information Technology vide letter .dated 08.03.2007 as BSC/B.C.S with Computer Sciences from a recognized University having the compulsory subjects of Computer-A Computer-B, B.A with six months diploma in computer or DCS/ICS, DBA (six months computer diploma).
7. Syed Shahbaz Ali Rizvi, the learned counsel for the petitioner has drawn my attention towards "Annex-F" appearing at page 134 of this petition which is the order dated 22.02.2008 passed by, the respondent EDO Health Layyah, to argue that all points raised in the Writ petition by the petitioners, have been admitted in categorical terms and that the plea raised by the learned Additional Advocate General is contradictory to the stance taken by the respondents in the past throughout.
Adds that no where qualification of the petitioners was ever in dispute. Lastly submits that so called grounds of ban is also of not much help to the respondents because vide letter dated 20.11.2007, the Election Commission had only imposed ban in respect of transfers of employees in exercise of its Powers under Article 218(3) and 220 of the Constitution Islamic Republic of Pakistan, 1973 and that no where it finds mentioned ban upon fresh recruitments. He also refers to advertisements dated 16.11.2008 appeared in the daily Jang Lahore vide which Punjab Public Service Commission Lahore while inviting applications and the recruitments to the post of Computer Operators B-S 12 has prescribed qualification as I.C.S or Intermediate with certificate in M.S Offices. To canvass that petitioners are being discriminated inasmuch as they are knocked out on the ground of lack of qualification but the qualification in the advertisement referred to above is lesser, the petitioners are on higher pedestal. Further submits that the Honourable Supreme Court of Pakistan while taking serious notice of such act of arbitrariness proceeded to allow petitions filed by similarly placed employees and observed that even if the appointments were illegal and there was wrong exercise of powers in that eventuality instead of removing employees from service action should have been taken against those who made such appointments. Reliance is placed upon (PLJ 2005 S.0 561) Muhammad Akhter Shirani and others vs. Punjab Text Book Board etc. Further contends that the department cannot be allowed to approbate and reprobate nor the poor petitioners can be penalized for the acts performed by the public functionaries. Reliance is placed upon 2007 SCM R 569 Overseas Pakistan Foundation and others vs. Sqn (Retd.) Syed Mukhtar Ali Shah and another, (PLJ 2008 Lahore 718) Rana Asif Nadeem vs. EDO etc. To canvass that without giving appropriate opportunities of hearing the petitioners appointments letter could not be recalled. Lastly on the strength of judgment of Honourable Supreme Court of Pakistan (NLR 2005 Service 172) the learned counsel for the petitioner contends that even if the appointments were made during period of ban the same could not be recalled.
8. Arguments heard. Record perused.
9. The petitioners admittedly were appointed as computer operators against vacant posts after observing codel formalities. The powers of the authority who appointed them is also not in dispute.
The respondents have not uttered even a single word in their report and parawise comments denying assertions made by the petitioner in this Constitutional petition, which under the law in absence of categorical denial are deemed to have been admitted. In this particular case as rightly pointed out by the learned counsel for the petitioner through stance of the appointing authority has been that the petitioners were duly appointed after observing all codel formalities and now the respondents by taking U tern have introduced a fresh point and have disputed for the first time the qualification of the petitioners. Even in the report the Executive District Officer he has submitted that upon the question being raised qua qualification of the petitioners he wrote a letter to the Chairman Higher Education Commission of Pakistan and the Board of Intermediate and Secondary-Education D.G Khan to which the replies were still awaited. However, since the names of Universities, institutions from where the petitioners got degrees/diplomas/certificates of qualifications were not found on the Web site as recognized University/Institutions, therefore, all the petitioners were disqualified. The stance taken by the learned Additional Advocate-General as well as the respondents during the course of arguments as well as in prayer clause of their report suffers from following flaws; Firstly this ground does not find mention in the impugned order nor was it a consideration for recalling the appointment orders. Secondly the petitioners were never confronted with this position nor they were ever issued any show-cause notice.
10. I also Find that the petitioners were deprived from their livelihood by the respondents through an arbitrary manner without issuance of any show-cause notice and without giving even a chance of personal hearing. The law laid down in the above referred judgment cited at bar by Syed Shahbaz Ali Rizvi, is fully attracted in view of facts and circumstances of the case. In my views, I am also fortified by law laid down by the Honourable Supreme Court .of Pakistan in judgments reported as (2005 SCM R 85) Muhammad Shoaib and 2 others vs. Government of N.W.F.P through The Collector, D.I. Khan and others, (2004 PLC (S.C), 680) Muhammad Sharif and others vs. Director of Education Elementary School and others.
11.For the aforesaid reasons this petition is allowed, consequently orders impugned herein are hereby set aside. The petitioners shall be deemed to be in service from the date they initially joined their service with the respondents. They shall be allowed duty forth with.
12.However, since the respondents have raised plea regarding qualification of the petitioners, therefore, in view of peculiar circumstances of the case they shall be at liberty to initiate fresh proceedings in accordance with law by giving a fair opportunity to the petitioners, 13.With these observations this petition stands disposed of.