Attaullah Khan, J.--Dr. Akhtar Nawaz and four others filed this writ petition against Vice- Chancellor etc with prayer to declare that they are validly appointed Professors (BPS-20) by the competent authority vide office order dated 30.07 2007 and its withdrawal through office order dated 14.09.2007 is arbitrary, ultra vires, mala fide, without jurisdiction and without lawful authority.
2. Brief facts are that the petitioners earlier filed a writ petition in this Court Bearing No, 326/2005, which was decided on 27.06.2007 on the basis of statement of counsel for respondents, in which he agreed to redress the grievance of the petitioners by reinstating them with retrospective effect i.e 16.01.2004. Subsequently, in pursuance to the said decision the competent authority issued offence order dated 30.07.2007, through which the petitioners were Adjusted as professors with effect from 16.01.2004.
3. Later on, an office order was issued on 14.09.2007, vide which the order of reinstatement was withdrawn.
4. We have listened to the arguments of the learned counsel for the parties and also gone through record available on file, in light of which our discussion is as under.
5. The main question in this writ petition is that whether the right accrued to the petitioners, can be withdrawn without notice. The second question is that whether an order passed by this Court can be altered or modified by any other authority.
It is argued by learned counsel for the petitioners that the order dated 30.07.2007 vide which the petitioners were appointed as professors, was passed in pursuance to a Judgment of this Court which cannot be altered subsequently by any other authority. It is also one of the arguments on behalf of the petitioners that without notice, the appointments of the petitioner cannot be withdrawn.
7. We would first discuss the office order dated 30.07.2007. Perusal of the contents of this office order reveals that it was issued in pursuance to the orders of this Court passed on 27.06.2007. The order of this Court dated 27.06.2007 reveals that the counsel of the University agreed before the Court that the respondents concerned are ready to redress the grievance of the petitioners by reinstating them from 16.01.2004.
8. Keeping in view this consent given at the bar, the above order was passed with direction to reinstate the petitioners with effect from 16.01.2004. It is further clear from the record that this matter was also discussed in University Syndicate and was approved. After due consideration, the petitioners were appointed as professors vide office order dated 30.07.2007. They worked on the said posts till their appointments was withdrawn on 14.09.2007 through an office order issued by Deputy Registrar, Gomal University. The withdrawal order seems to have been issued in the light of direction issued by Chairman Higher Education Commission, Islamabad vide letter dated 28.08.2007.
9. The above proceedings reveals that the Gomal University, after acting upon the orders of this Court, reinstated the petitioners and secondly before withdrawal of reinstatement order, no notice was given to them.
10. As far as the decision of this Court recorded on 27.06.2007 is concerned it was and is a final order as no appeal or review has been filed. This Judgment has been acted upon. It is held by apex Court that the Judgment of High Court could not be modified/erased by such subsequent resolution as once the decision of the High Court become final then its validity could not be questioned. We rely upon 2101 SCMR 832 wherein it is held that: The Resolution No. 108 was passed by the Syndicate and was re-affirmed by the Resolution No.110.
Its validity, correctness and propriety were upheld by the High Court in its judgment delivered Constitutional Petition No.D-42 of 1999. After decision of the High Court, it became final and its validity could not be questioned through Resolution No.115 dated 1st and 8th April. 2000. In fact, it tantamounts to interference in the judgment delivered by the High Court and fell within the scope of contempt of Court. The judgment of the High Court could not be modified/erased out by subsequent Resolution. Clause (a) of Resolution No. 115.6, inter alia, contains the words "All remaining students are to be treated alike", this means that the Respondents Nos. 1 to 7 shall also take short courses of two and six weeks, which they are not required to take as per judgment of the High Court. The Vice-Chancellor was clearly directed to implement the Syndicate Resolutions Nos.
108 and 119. Taking a lenient view, we are not issuing contempt notices to those who passed the Resolution No. 115.6 but warned them to be careful in future."
11. So in view of the above principle, the judgment of High Court, in the case in hand, has become final, therefore, it cannot be modified/erased by any body like Gomal University. So on this ground also the withdrawal order is not sustainable.
12.Coming to the next issue above, not issuing a notice to the petitioners before withdrawal of the appointment orders, we refer to PLD 1991 Supreme Court 973, in which it is held that: "In this context, reference can be made to Section 20 of General Clauses Act and guidelines laid down in the case. of Pakistan v. Muhammad Himavatullah Farukhi (PLD 1969 Supreme Court 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of individual."
13. From the above it is now settled law that once rights accrued to a person, it cannot be taken away unless notice is given. In this case it is clear from the record and also admitted by the respondents concerned in their written statement that no notice was given to the petitioners. If we considered for the sake of arguments that there is no provision in the Act or Rules of the Gomal University about the issuance of notice, again it would be the requirement of natural justice to issue notice. We may refer to PLD 1990 Supreme Court 666. In the said Judgment the observations are: "The. Courts in Pakistan have, however, taken the view that where the giving of a notice is provided for by the statute itself then the failure to give such a notice is fatal and cannot be cured. But where there is no. specific statutory provision and reliance is only placed on the principles of natural justice and audi atleram partem, there if at some stage or other the person aggrieved has been given a fair opportunity of representing his point of view then the defect, if any, in the initial order may be deemed to have been cured. Thus, in the case of Muhammad Ishaq v. Dr. Saiduddin Swaleh PLD 1959 Kar. 669 it was pointed out that each case will have to be determined on its own facts. If the statutory provision for notice be of a mandatory nature, then an order without any notice would be wholly void; but if there be no such provision or if the provision merely of a directory nature, then, wherever a violation of this principle of natural justice is alleged, the Court may call upon the party alleging the same to prove prejudice before it set aside the order. Such prejudice would obviously not be there if it is found that the party had been actually given a full hearing by the appellate or revisional authority and afforded every opportunity of showing cause against the allegations made. To the same effect is the view of the Peshawar High Court in the case of Charsada Sugar Mills Ltd. v. Government of Pakistan PLD 1971 Peshawar 210. This Court, too, has consistently taken the same view vide; The Commissioner of Income-tax, East Pakistan v. Fazlur Rehman PLD 1964 SC 410, Abdul Latif Niazi v. Government of West Pakistan PLD 1967 SC 62 and Mansab Ali v. Amir PLD 1971 SC 124. This Court has gone to the extent of pointing out that the mere absence of a provision a statue as to notice cannot override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing and also held that where the giving of a notice is a necessary condition for the proper exercise of jurisdiction then failure to comply with this requirement renders the order void and the entire proceedings which follow also become illegal."
14.The above principle laid down by apex Court clearly indicates that if provision of notice is not available in the statue, even then issuance of nonce is necessary in order to justify withdrawal of vested rights. In the case in hand no opportunity of hearing has been provided before withdrawal of reinstatement to the petitioner and thus prejudice is caused to them.
15.The upshot of our above discussion is that the petitioners were vested with a right of serving as professors in BPS-20 through office order of the University it was issued in pursuance to decision passed by this Court. That decision was acted upon after reinstatement order was issued by Gomal University. That the said decision has become final, so far, no review or appeal etc has been filed against it. So the final judgment of the High Court cannot be disturbed, modified, or altered by any other authority. In this case, this has been done, which alien to law and quite illegal. Secondly, the rights of the petitioners were taken back by concerned authority without giving them notice which resulted in gross miscarriage of justice which is against law. Therefore, we declare the order impugned in the writ petition as illegal, void and without jurisdiction by accepting the instant writ petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.