1. ' MUZAFFAR ALI, J.--- This writ petition assails orders dated 23-8-2003 and 10-9-2003, with the claim to issuance of directives to the respondents to restore the services of petitioner as M.T. Teacher (BPS-9) in the Education Department NA's with effect from the date of his appointment.
2. ' The facts giving rise to this writ petition are as that, the petitioner was appointed as M.T. Teacher (BPS-9) in the respondent's department vide order dated 7-8-2003, keeping in view the services he rendered to the respondent's department as volunteer and SAP teacher. The petitioner submitted his joining in compliance with the order on the same day and his service book was also prepared.
3. ' The petitioner was performing his services smoothly but all of a sudden, without any show-cause notice to the petitioner, the appointment order of the petitioner was rescinded by the respondents.
4. The petitioner A made a representation to the respondent No,1 but for no avail, hence this writ petition before this Court.
5. ' The respondents attended the Court and submitted their written comments against the writ petition, whereby they conceded the appointment order of the petitioner and also rendering of his services after joining in compliance with the appointment order dated 7-8-2003, but they assailed the appointment order of the petitioner as being without consultation with the DPC and fulfilment of other Codal formalities.
6. ' We heard the learned counsel for the parties.
7. ' The learned counsel for the petitioner assailed the rescinding order passed against the petitioner with the force of points as under:
(a) That the termination of the petitioner from the service is unwarranted, mala fide and discriminating in its nature for being without issuance of show-cause notice and unheard in violation of the well-settled principle of law "audi alteram partem".
(b) That once the appointment order was effected and acted upon, as such the respondents' department was ceased of powers to cancel, rescind or undo the same and the principle of "locus poenitentiae" was not available to the respondents as a valuable vested right was occurred to the petitioner after joining the service, hence the impugned orders are without jurisdiction and having no legal sanction.
(c) That the respondents have passed the impugned orders in an omnibus manner, without going into assigning reasons against each individual, hence the impugned orders are not sustainable in the eyes of law.
(d) That the written comments of the respondents transpire that, the petitioner had no fault and the appointment order of the petitioner was issued by the competent authority and for argument's sake, if any formality was left undone, then it was the fault of the respondent's department and the petitioner could not be punished for no wrong on his part, hence the impugned orders are liable to be set aside.
8. ' In response to the above points, the learned A.A.-G. Stressed on the point that since the appointment order of the petitioner was passed without consulting with the DPC, Codal formalities of rules and procedure were ignored by the appointing authority as such, no show-cause notice was required and the competent authority was well within power to undo the same under section 21 of the General Clauses Act, 1897 (hereinafter called the Act).
9. ' We, before going to discuss the above points raised by the learned counsel for the petitioner and the learned Assistant Advocate General for the respondents, would like first to discuss the general observation of this Court about the conduct of the public functionaries in various Departments of NAs as we have built the same after adjudication of various cases of like nature as the case in hand that, the administrative authorities of various departments in Northern Areas particularly in (Education Department, NA PWD and in Police) do not follow the Codal formalities, rules and procedure while they sit to decide the service matters and when the issues come to the notice of high-ups or the authority is being transferred or gets pension, the successor in office tries to show his efficiency by pointing out the irregularities made by his predecessor, but again the wrong-doer escapes from any accountability and the poor service man becomes the victim of the action, but that too without resorting to the relevant rules, law and procedure. In numerous cases, we have observed that many people were appointed by the competent authority but in violation of rules; procedure and law and the person continued his services without any legal action against his wrongful appointment until his well-wisher holds the office, but when the authority disappears from the scene, the employee suffers from action but unwarranted in eyes of law, hence he rushes to the Court of law to get redressal of his grievances and in most of the cases, the aggrieved person succeeds for the only reason that the action taken against him floatingly seems to be in violation of rules, law and procedure and when the Court restores the services of the person from the date of his illegal dismissal, it causes monetary burden to the State treasury, while the loss may be avoided if the above law ignoring and violating tendencies of public functionaries are checked and action is taken against, by the Provincial Government , with this intention we feel it proper to send a copy of this judgment to the Chief Secretary. So, office of this Court is directed to send a copy of this judgment to the Chief Secretary NA's. After passing the above general structure, now we want to get through the points raised in the instant case and what we have gathered from the arguments and record of the case is that, the petitioner was appointed by the respondent No,2 as teacher in BPS-9 he joined his services and thereafter terminated vide orders dated 23-8-2003 and 10-9-2003 without showing any cause, but before the Court, the respondents have stated the cause of dismissal through their written comments as that, "the appointment of the petitioner was ordered without fulfilling in codal formalities and mandatory rules of appointment" and during course of arguments the learned A.
10. Advocate General tried to defend the cancellation order by dint of section 21 of the General Clauses Act so we want first to discuss the same. Section 21 of the Act empowers an authority to add, amend, vary or rescind orders, rules or bye-laws, if he was competent under law to pass the order, issue notification rules or bye-laws, this section is based on the principle of locus poenitentiae, which is as that any authority competent under law to make an order, has power to undo same, but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual and has been acted upon. In the case in hand the respondents have conceded that the petitioner had joined the post in pursuance of his appointment order as such the order was acted upon and some rights are created in his favour, hence the same could not be cancelled without adopting the codal formalities and procedure.
11. ' The plea of the respondents may be true that the petitioner's appointment might have been made without fulfilment of the codal formalities and mandatory rules of appointments by the then appointing authority but the superior judiciary has discarded practice of dismissal or removal of the service of the individual without due inquiry or giving ample opportunity to the individual to meet the allegations against him. In this regard, the well-settled principle of natural justice may be quoted here, which has been recognized through the maxim "audi alteram partem" meaning thereby is that, no one can be condemned unheard.
12. ' In the case in hand, admittedly, the petitioner has joined his services in pursuance of his appointment order dated 7-8-2003 as such the order could not be rescinded in exercise of the powers conferred by section 21 of the Act as no "locus poenitentiae" was available to the respondents for the reason the order was effected and a valuable right was created in favour of the petitioner, furthermore no show-cause notice was issued to the petitioner prior to the termination of his service and no ample opportunity was granted to the petitioner to meet the allegation against him, hence the termination order is hit by the universal principle of "audi alteram partem" and not sustainable in the eyes of law. We received guidance from the following case-law
(1) 1997 SCMR page 15(2) 1993 PLC (C.S.) 588 (3) 1996 SCMR 1390 (4) 2004 SCMR page 158 (5) Nano Rani v. Provincial Government Writ Petition No,30 of 2005.
13. ' The upshot of the above discussion is that the writ petition is accepted and the termination orders are cancelled with effect from its issuance and the respondents are directed to pay the salary and other service benefits to the petitioner from the date of his appointment.