' JAVED IQBAL, J.--- The above captioned petitions for leave to appeal are being disposed of by this judgment, involving similar questions of law and facts, directed against the judgment, dated 16-10- 2008 passed by the Balochistan Service Tribunal, Quetta whereby the appeals preferred on behalf of petitioners under section 4 of the Balochistan Service Tribunals Act, 1974 were dismissed.
2. The facts of the case have been mentioned elaborately in the judgment impugned, hence reproduction whereof would be of no use and suffice it to say that Abdul Wahab and Bari Dad (petitioners) were performing their duties in the office of Director-General Planning and Design Circle Public Health Engineering Department, Government of Balochistan, Quetta as Senior Clerk and Peon respectively. Their services were dispensed with as a result of conversion of 93 posts out of 140 posts into non-development budget from the development budget. Being aggrieved the petitioners preferred Departmental Representation which was decided on the intervention of the Provincial Ombudsman and rejected. Being aggrieved the appeals were preferred which have been dismissed by the learned Service Tribunal vide judgment impugned, hence, these petitions.
3. We have heard the petitioners in person as well as the learned Additional Advocate-General assisted by Chief Engineer concerned. We have minutely perused the entire record with care and caution and also perused the judgment impugned. After having gone through the entire record we are of the firm view that the controversy could not be set at naught in accordance with law and settled norms of justice rather it was never dilated upon seriously and the petitioners were ousted in a haphazard manner without having gone through the merits of their cases. It is worth- mentioning that to determine the question of dispensation or retention of the employees a Steering Committee was constituted which after due deliberation on 7-1-1999 prepared a list including the names of those employees whose services were to be dispensed with and legal action was to be initiated to that effect by issuance of notices. It is worth-mentioning that the names of petitioners were not included in the said list. The learned Additional Advocate-General and Chief Engineer were asked pointedly as to whether the names of petitioners were included in the list or otherwise?
But no satisfactory answer could be given, however, it was not refuted in view of the admitted fact that on 7-1-1999 the meeting of Steering Committee was held which was presided over by the Additional Chief Secretary and 93 posts out of 140 posts were converted from development budget to non-development budget. Pursuant to the decision of said Committee, the Secretary, Government of Balochistan, Public Health Department was informed by the Director-General/Chief Engineer vide letter No,DG.CE/P&D/PHED/ 22 and names of 19 project employees were sent for further necessary action but the names of petitioners were not included in the list. It may not be out of place to mention here that Director-General/Chief Engineer has requested time and again to the Secretary Public Health Engineering Department that for the smooth functioning of the office the posts of Junior Clerk, Driver, Chowkidar and Dispatch Rider would be essential but no action appears to have been taken. In this regard letter of even number; dated 6-12-1999 addressed to the Secretary Public Health Engineering Department remained unattended. It is quite amazing that the Director-General/Chief Engineer abolished the posts of Junior Clerk, Driver, Chowkidar and Dispatch Rider by means of letter of even number dated 9-6-2000 whereas remaining project employees were confirmed. It is to be noted that the Director-General/Chief Engineer has pointed out that the posts of Director Finance and Accounts Officer were not needed having no work in the office and stressed that for smooth administration of the office the posts of Junior Clerk, Driver, Chowkidar and Dispatch Rider should not be abolished being inevitable. The Chief Engineer could not explain that how the unwanted posts of Director, Finance and Accounts Officer were retained and how the extra burden on the exchequer was dealt with. It is difficult to reconcile such a highly contradictory position. It has been observed that various letters were addressed to the Secretary, Government of Balochistan, Public Health Engineering Department by the Director-General/Chief Engineer that the office was badly in need of services of petitioners and in this regard S.N.Es. Were also sent to the Secretary but record is silent as to whetter the same were transmitted to the Finance Department or otherwise? The Chief Engineer could not point out any official record on the basis whereof it could be inferred that the S.N.Es. Were turned down by the Finance Department due to heavy burden upon the public exchequer. Insofar as the question of heavy burden upon the public exchequer is concerned it does not arise for the simple reason that all the existing employees in Grade-17 and above were retained in spite of the fact that retention of the petitioners was requested time and again and besides that it was emphasized by the Director-General/Chief Engineer that no injustice should be done to the low paid employees as is indicative from his letter of even number, relevant portion whereof is reproduced hereinbelow for ready reference:- "It is further brought out that the unwanted posts of higher grades as explained above have been regularized and the lower class employees have been neglected by the Finance Department which is not only encouraging the unemployment problems but also hampering the working of the office as without which it is quite astonishing to run the office without the posts like junior clerk, Dak runner, driver and Chowkidar."
4. ' We have not been persuaded to agree with the prime contention of learned Additional Advocate-General that the principles of senioritycum-fitness was adhered to while deciding the question of retention and dispensation as the relevant record negates it. Admittedly Abdul Wahab is senior having selection grade BPS-7 whereas the, junior official was retained having BPS-4. When the Additional Advocate-General and Chief Engineer were confronted with the said position based on record no answer could be given meaning thereby that the principle of seniority was not kept in view while deciding the question of retention and dispensation. The Chief Engineer half-heartedly pointed out a copy of order whereby fine amounting to Rs,1,325 was imposed for causing loss to a fan upon Bari Dad (petitioner). It is, however, to be noted that some penalty was imposed upon Gul Zaman, Chowkidar also who was retained then how Bari Dad (petitioner) could be ignored. If Bari Dad (petitioner) was negligent why he was retained in service for a considerable long time and no action was taken against him. The Chief Engineer and learned Additional Advocate-General have time and again mentioned the decisions of the Steering Committee qua retention of the employees in oblivion of the fact that names of petitioners were not included in the list of employees whose services were to be dispensed with. The decision of Steering Committee held in its meeting dated 4-7-2000 which is reproduced herein below to clarify the anomalous position as portraited by Chief Engineer:--- "3 Regularization of four posts of D.G. Design Cell, PHED.--- It was informed that a joint appeal has been submitted to the Additional Chief Secretary (Dev) from the four staff of Director-General Design Circle, PHE Department stating that they were left without regularization under BRWSS Project posts which is a discrimination with them as most of the staff junior to them working in BRWSS Project D.G. Design Circle Chief Engineer (South) have been regularized. Notices for their services termination after 30 June, 2000 have been served. Therefore, the affected staffs have requested that they may be regularized on the basis of other staff regularized under BRWSS Project.
' Decision.--- The PHE Department would submit a separate case regarding continuation of the posts from Development Budget and transfer of project posts from Development to non- development side."
5. A bare perusal of the above mentioned decision would reveal that no objection whatsoever was raised qua the names of petitioners regarding their retention in service. Had they been inefficient the objection could have been raised by the department who had duly represented in the meeting of the Steering Committee? The conduct of the Public Health Engineering Deartment was neither fair nor can be declared as transparent. There is no doubt that the petitioners were terminated without any reason and in fact their termination amounts to discrimination as they were ignored without any rhyme and reason which is grave violation of Article 25(1) of the Constitution of Islamic Republic of Pakistan, 1973 which provides that all the citizens are equal before law and are entitled to equal protection of law.
6. The petitioners have invited our attention to the letter of even number, dated 9-3-1999 wherein the names of 19 employees are mentioned against whom necessary action for dispensation of their services was to be taken pursuant to the decision of Steering Committee made on 1-7-1999 under the Chairmanship of Additional Chief Secretary (Development). The Chief Engineer was confronted with the said letter and it is admitted that the . Names of petitioners were not included therein. Another letter of even number, dated 9-6-2000 is quite important which is reproduced herein below for ready reference:--- "Director-General/Chief Engineer, Planning and Design Public Health Engineering Department Ph.9202293-2150 ' No,DG/CE/P&D/PHE/A(3)1021-27 Quetta 9-6-2000 ' To
(1) Abdul Wahab, Junior Clerk,
(2) Amir Jan, Dak Runner,
(3) Khalid Hussain, Driver,
(4) Bari Dad, Chowkidar.
' Subject: Notice for termination from service ' Reference: Secretary P.H.E. Department, Quetta Instructions dated 8-6-2000 ' You had been appointed temporary against the project posts. The Government of Balochistan is not in a position to allocate funds for continuance of your services in the next year i,e, 2000-2001 under Development budget sector. As such, your services are not required to be continued further in the next year.
' You are hereby served one month's notice for termination from service w,e,f, 30-6-2000 due to the reasons above. After 30th June, 2000, your services should be considered terminated and treated yourself relieved from this office.
' (Sd.) Director-General/Chief Engineer P&D Circle P.H.E. Department, Quetta ' Distribution.
(1) The Secretary Public Health Engineering Department Quetta. It has already been brought out to your notice that the following unwanted posts as sanctioned in the budget for 1999-2000 without the demand of the undersigned are not needed at any cost as there is no function in this office except to burden the Government exchequer as well as to open as new chapter of unending Court cases between the staff of P.H.E. Department for these unwanted posts.
(1). Director Finance (B-18), Monitoring Cell (one)
BRWSSP
(2) Accounts Officer (B-17) Monitoring Cell (one)
BRWSSP ' As such, there is no justification to accommodate them in this office for continuance of their posts for the next year which is against the existing PWD organization in vogue. The actual position to surrender the above unwanted posts have already been explained vide this office No,A-9/916 dated 17-8-1999 and A-9/188-89 dated 11-12-1999 and No,A-9/234 dated 14-2-2000.
' It is once again requested that the above unwanted posts may kindly be withdrawn/surrendered from this office and your good efforts may kindly be extended for continuing the posts of the above low paid employees which are direly needed for smooth functioning of the daily routine/maintenance tasks of the office please.
' It is further broughtout that the unwanted posts of higher grades as explained above have been regularized and the lower class employees have been neglected by the Finance Department which is not only encouraging the unemployment problems but also hampaing the working of the office as without which it is quite astonishing to run the office without the posts like Junior Clerk, Dak Runner, driver and Chowkidar. (emphasis provided)
(2) The Accountant-General, Balochistan, Quetta.
(Sd.) Director-General/Chief Engineer P&D Circle P.H.E. Department, Quetta
7. It transpired from a bare reading of the above reproduced letter that Director, Finance (B-18), Monitoring Cell BRWSSP and Accounts Officer (B-17) Monitoring Cell BRWSSP were not required by the Department but their services were retained which is a mystery and learned Additional Advocate-General and Chief Engineer could not explain that how this extra burden on the exchequer would be met.
8. Another important aspect of the controversy is that 65 officers who were asked to relinquish the charge were by means of letter of even number dated 13-1-2004 were reinstated by the Chief Minister vide letter of even number dated 15-1-2004 which is reproduced hereinbelow for ready reference:--- " No, SO(A)4-84/2004/PHED/235-300 Government of Balochistan, Public Health Engineering Department ' Dated Quetta, the 15th January, 2004 Sub: Relinquish of charge ' In compliance of directive of Honourable Chief Minister conveyed by Services and General Administration Department's letter No,1302/P.A. AS/04, dated 15th January, 2004. The orders in respect of 65 (sixty-five) employees of BRWSS Project of this Department is hereby cancelled.
(Sd.) Abdus Salam Khan Secretary, PHED ' No, and dated even ' A copy is forwarded to the:-
(1) Principal Secretary to Governor Balochistan, Quetta.
(2) Principal Secretary to Chief Minister, Balochistan, Quetta.
(3) Senior Member, Board of Revenue Balochistan, Quetta.
(4) Additional Chief Secretary (P&D) Balochistan, Quetta.
(5) All Administrative Secretaries Government of Balochistan.
(6) Secretary S&GAD Balochistan with reference to his letter No, quoted above.
(7) Accountant-General, Balochistan, Quetta.
(8) Chief Engineering PHED Balochistan (F/O) Quetta.
(9) Chief Engineer PHED (P&D) Balochistan, Quetta.
(10) All E.D.Os. PHED Balochistan, Quetta.
(11) P.S. To Minister PHED, Quetta.
(12) P.S. To Secretary PHED, Quetta.
(13) Director-General Public Relations Department, Baln; Quetta.
(14) Officers/officials concerned.
(15) Master file.
(Sd.) (Dasthir. Khan Achakzai)
Section Officer (Admn.) 15-1-2004"
9. The Chief Engineer was asked time and again that after issuance of above direction of the Chief Minister how the petitioners could be ignored but no plausible justification could be given. In our views the controversy has been set at naught and no pick and chose can be made by the Department which is not competent to make any addition, deletion or insertion in the above mentioned directive. The attention of Additional Advocate-General and Chief Engineer was also invited to the decision of Steering Committee which runs as follows:--- "Regularization of four posts of D.G. Design Cell, PHED.--- It was informed that joint appeal has been submitted to the Additional Chief Secretary (Dev.) from the four staff of Director-General, Design Circle, PHE Department stating that they were left without regularization under BRWSS project posts which is a discrimination with them as most of the staff junior to them working in BRWSS Project, D.G. Design Circle Chief Engineer (South) have been regularized. Notices for their services termination after 30 June, 2000 have been served. Therefore, the affected staffs have requested that they may be regularized on the basis of other staff regularized under BRWSS Project.
Decision.--- The PHE Department would submit a eparate case regarding continuation of the posts from Development Budget and transfer of project posts from Development to Non-Development side.
(Sd.) Ikram-ul-Haq) Assistant Chief (PHE)
No,P&D.RO PHE(1)9/99-00/3045 dated Quetta the July, 17, 2000 C. C .
(1) The Secretary, Finance Department, Government of Balochistan, Quetta.
(2) The Secretary, Public Health Engineering Department Government of Balochistan, Quetta.
(3) The Project Director BRWSS Project Department, Quetta.
(4) Master file.
(Sd.) Assistant Chief (PHE)"
10. The Chief Engineer could not explain that as to whether a separate case regarding continuation of the posts from development budget and transfer of project posts from development to non- development side was prepared or otherwise and why the names of petitioners could not be included in the posts to be continued from development budget and transfer of posts from development to non-development side.
11. No one could be allowed irrespective of the fact who is who to act in an arbitrary, fanciful and whimsical manner and they had got to be judicious, fair and just in taking such decision. We are not persuaded to A agree with the learned Additional Advocate-General that the question of retention and dispensation squarely falls within discretion of department for the reason that the "Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power to exercise discretion would not authorize such Authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive. Where the President of Pakistan's exercise of discretionary powers under Article 58(2)(b) of the Constitution were found to be violative of terms and spirit of that Article, the orders were struck down". (Emphasis provided). Human Right Case No,5818 of 2006 2008 SCMR 531, Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705, Abid Hussain v. PIAC 2005 SCMR 25, Manzoor Hussain v. Muhammad Ashraf 1999 PLC (C.S.) 279, Gadoon Textile Mills v. WAPDA 1997 SCMR 641 and Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166.
12. In view of what has been stated hereinabove, we are inclined to convert these petitions into appeals and the same are accepted. These are the reasons of our short order, dated 29-5-2009 which is reproduced hereinbelow for ready reference:--- "For the reasons to be recorded separately, these petitions are converted into appeals and accepted. The appellants be reinstated in service with immediate effect. It transpired from an in- depth scrutiny of record that matter has been dealt with in a careless, cursory and casual manner without examining the merits of the case. The explanation furnished by the Chief Engineer for their ouster from the service is vague, sketchy and contradictory as the record speaks otherwise. The compliance report be submitted within a week."