This judgment shall also decide Writ Petitions No, 7009/2005, 7015/2005, 7016/2005, 7017/2005, 7018/2005, 7111/2005, 7131/2005 and 112/2006 alongwith this petition, as common questions of facts and law are involved.
2. Brief facts leading to these writ petitions are that the petitioners being fully eligible for the posts of teachers applied, their eligibility was assessed, suitability was determined and then they were appointed in the years 1995/1996. Throughout their continuation with the service, the petitioners' performance remained up to the mark but unfortunately they remained disturbed through different means on extraneous consideration and not in the exigency of service and lastly the petitioners were served with show-cause notices which are impugned in the present writs.
3. Learned counsel for the petitioners submit that the impugned show-cause notices are an outcome of mala fide, arbitrariness and ulterior motive and that too without keeping into consideration that they are performing their duties since a decade. Further submit that practically the departmental authorities have decided to oust the petitioners from service just to accommodate their own blue eyed whereas the impugned show-cause notices are just a formality and nothing else.
4. On the other hand, the learned Additional Advocate-General opposed the writ petitions with vehemence, contending that the same are not competent in view of bar of Article 212 of the Constitution of Pakistan. Further submits that the departmental authorities cannot be restrained from initiating any action against the employees, so the impugned proceedings which were started were within the domain of the departmental authorities.
5. Arguments heard. Record perused.
6. So far the objection regarding maintainability of the writ petitions is concerned, it is not denied that in the present case neither any final order or appellate order is passed, which could extend the jurisdiction of Service Tribunal, hence keeping in view the law laid down in LA. Sherwani vs. Government of Pakistan (1991 SCMR 1041), Pakistan Railways vs. Muhammad Allauddin Babari (1998 SCMR 1605) and Administrator, District Council Larkana and others vs. Ghulab Khan and 5 others (2001 SCMR 1320), it is held that this Court can interfere in the impugned controversy in exercise of jurisdiction under Article 199 of the Constitution of Pakistan.
7. Even in a case of civil servants' terms and conditions of service, the Hon'ble Supreme Court of Pakistan in tie case reported as Mrs. Munawar Sani vs. Director Army Education (1991 SCMR 135) resolved the controversy in the 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-down obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post."
8. The objection of the learned Additional Advocate-General regarding non-maintainability of the writ and jurisdiction of this Court is repelled.
9. Another objection of the learned Additional Advocate-General is that as no final order is passed against the petitioners, thus interference in the departmental action shall not be justified and writs should not be issued.
10. In my view, employees should not be denied practical justice by letting them seek and hide hunting their remedy through a lengthy and unnecessarily extended process of litigation. In fact employees should not be thrown on the road for the search of justice.
11.For example, in the present cases, if the authorities are allowed to continue with the proceedings, the ultimate result would be the dismissal/removal/termination from service of the petitioners and to reach the stage of vindication they would have to undergo a very lengthy and time consuming process of having recourse firstly to the Service Tribunal and then ultimately to the apex Court and thus process starting from the Authorities and ending up at the Court of last resort i,e, the Supreme Court of Pakistan, would take a number of years.
12. At this juncture, I may refer a recent judgment passed by the Supreme Court of Pakistan dated 29.04.2008 in cases of number of employees titled "Government of Punjab, Secretary Education, Civil Secretariat, Lahore & others vs. Sameena Parveen & others, a Bench comprising of Hon'ble four Judges headed by the Hon'ble Chief Justice, wherein it is held. "It was held by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was reiterated by this Court in the case of Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and -others (2005 SCMR 499) and it was held that according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law."
13. It is important to note that in the cases referred above all the teachers who approached firstly to the High Court through Writ Petitions No, 11263, 11516, 11525, 11662, 11663, 11766 all of 2008 and got relief through a judgment passed by my learned brother Sardar Muhammad Aslam, J. (as he then was) despite a clear bar of Article 212 of the Constitution of Pakistan and the Hon'ble Supreme Court of Pakistan upheld the judgment of the High Court.
14. The present writ petitions are of similarly placed employees/teachers and I am of the firm view that they are also entitled for the same relief and should not be allowed to keep them in vacuum leaving them for a lengthy process of litigation.
15. In the present cases, it is not denied by the respondents that the petitioners were eligible for the posts they applied, their cases were scanned by the duly constituted committees, their suitability was determined by the competent authority, all of them were appointed by the order of the competent authority and as such a lawful right had already accrue.d in their favour which could not be rescinded or recalled on the touchstone of well settled principle of locus penitential and that too through such like exercise of issuance of show-cause notices, which are impugned in the present writ petitions. The petitioners are performing their duties for more than a decade without any complaint whatsoever, so a valuable right which had already accrued in favour of the petitioners is protected on the touchstone of law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Liaquat Ali Memon and others vs. Federation of Pakistan and others (PLD 1994 SC 556), Secretary to Government of N-.W.F.P. and another vs. Muhammad Nawaz and another (PLD 1996 SC 837), Rukhsar Ali and 11 others vs. Government of N-W.F.P. through Secretary Education, Peshawar and 3 others (2003 PLC (CS) 1453), Pakistan International Airlines Corporation through Chairman and others vs. Shahzad Farooq Malik and another (2004 SCMR 158) and Chairman/Managing Director, Pakistan International Airlines Corporation and another vs. Nisar Ahmad Bhutto (2005 SCMR 57).
16. The apex Court had already protected the rights of such like employees in so many cases on the plea that if at all at the time of appointment some lapses were made, some irregularity was committed or any appointment contrary to certain instructions was made then the employees already appointed cannot be held responsible for the same and cannot be made sufferers rather the responsible for such appointments be taken to task. Reliance in this respect can be made on the cases of Director Social Welfare, N-.W.F.P., Peshawar vs. Sadullah Khan (1996 SCMR 1350), Chairman, Minimum Wage Board Peshawar and another vs. Fayyaz Khan Khattak (1999 SCMR 1004), Collector of Customs and Central Excise, Peshawar and 2 others vs. Abdul Waheed and 7 others (2004 SCMR 303), Muhammad Akhtar Shirani and others vs. Punjab Text Book Board and others (2004 SCMR 1077), and Abdul Salim vs. Government of N-.W.F.P. through Secretary, Department of Education Secondary, N.W.F.P., Peshawar and others (2007 PLC (CS) 179).
17.In the attending circumstances, taking strength from the law laid down the apex Court, all the writ petitions are allowed in terms of the prayers made therein.