' JAVED IQBAL, J.---This appeal with leave of the Court is directed against judgment dated 10-6- 2004 whereby the writ petition preferred on behalf of appellant has been dismissed.
2. The facts of the case have in some detail been set out in the judgment impugned and need not, therefore, be reproduced herein extenso.
3. Leave to appeal was granted by means of order dated 5-3-2008 which is reproduced hereinbelow for ready reference:-- "It is submitted, inter alia, that under the retrenchment policy the seniors were to be identified and retained on the basis of merit, who had good service record etc. Whereas in the petitioner's case, respondent No,3 who is junior to him and did not have better service record, has been retained and the petitioner has been retrenched and this discrimination was pointed out to the learned Judge of the High Court but this aspect has not been attended to in the impugned judgment. We have asked learned counsel representing respondents Nos.1, 2 and 4 but he has asked for more time to properly assist the Court. In view of the above mentioned, leave is granted to consider whether the petitioner was treated discriminately.
2. The appeal shall be listed for hearing within two months. The parties are at liberty to furnish additional documents, if they so desired, on which they want to rely at the time of hearing of the appeal."
4. Raja Muhammad Bashir, learned Advocate Supreme Court entered appearance on behalf of appellant and urged with vehemence that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that in fact petitioner had not opted for the Golden Hand Shake Scheme as at the relevant time he was on deputation with the Barani Area Development Project hence the question of his termination from service does not arise. It is contended that the Forest Development Corporation has not adopted the well-entrenched principle having universal application in such like cases i,e, 'last come first go' and exercised its discretion in an arbitrary and whimsical manner by adopting the policy of 'pick and choose' having no legal or moral sanctity behind it. It is next contended that Mr. Roohul Amin, Deputy Director (Planning) N.-W.F.P. Forest Development Corporation (respondent No,3) is admittedly junior to the appellant and besides that the appellant has an excellent record as compared to that of respondent No,3 which was never taken into consideration and it also went unnoticed from the learned Division Bench of High Court causing serious prejudice against the appellant. It is further argued that the appellant had received the compensation but it was under compelling circumstances and pursuant to the notice from the Forest Development Corporation and the same was under protest. It is also argued that the learned High Court has failed to appreciate the main features and essential characteristics of the Retrenchment Scheme by ignoring the fact that the services of employees who were on deputation could not have been terminated till the completion of that particular project. It is pointed out that one Mr. Shahzada Qamar Zaib was retrenched from service under a Golden Hand Shake Scheme but later on he was reinstated in service by order dated 21-8-1998 in view of his seniority position but it has been ignored in the case of appellant which amounts to sheer discrimination as no reasoning whatsoever was assigned.
5. Mr. Qaiser Rasheed, learned Additional Advocate-General appeared on behalf of respondents and controverted the view point as canvassed at bar by Raja Muhammad Bashir, learned Advocate Supreme Court for the appellant for the reasons enumerated in the judgment impugned with the further submission that the question of retrenchment does fall within the jurisdictional domain of the respondents and no interference can be made as retrenchment was made after having taken into consideration all the relevant factors enumerated in the Retrenchment Scheme.
It is next contended that the question of subjective assessment could only be resolved by the respondents and not by any other authority, hence the High Court has rightly declined to exercise its Constitutional jurisdiction as conferred upon it under Article 199 of the Constitutional of Islamic Republic of Pakistan. It is lastly argued that the suitability of the appellant has been assessed which was not found upto the mark for his retention in service.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of the relevant provisions of law and record of the case. We have also perused the judgment impugned with the eminent assistance of learned counsel for the parties. After having an in-depth scrutiny of record it revealed that the appellant has invoked the Constitutional jurisdiction by means of Writ Petition bearing No,1773 of 1999 with the following prayer:-- "It is, therefore, humbly prayed that this Hon'ble Court may like to exercise its extraordinary jurisdiction under Article 199 of the Constitution and declare the order of respondent No,2 contained in Office Order No,FDC/ ADMN/11317 dated 30-10-1998 whereby the services of the petitioner were dispensed with and also the order of respondent No,1 vide letter No,1/256/FLC/ADMN/ 8061 dated 11-9-1999 as without lawful authority and of no legal effect and to reinstate the petitioner in service with all back benefits including pay, allowances and seniority etc. Any other writ, order and/or direction that may be considered appropriate in the facts and circumstances of the case may also be issued, passed/given with costs of this petition. The petitioner has not accepted the amount under the Golden Hand Shake Scheme so far."
7. The above mentioned writ petition was dismissed. It mainly weighed with the learned High Court that retrenchment was made pursuant to implementation of the decision of the High Powered Committee specially constituted for the purpose by whom voluntary option of the employees was obtained and the employees opted for Golden Hand Shake facility were retrenched and out of 360 employees, 132 employees exercised their option and accepted the Golden Hand Shake Scheme and the appellant also accepted the compensation, hence the question of any grievance does not arise. The learned Division Bench is also of the view that retrenchment was made after having considered the performance, suitability and scrutiny of service record.
8. It is an admitted feature of the case that in 1998 due to imposition of ban on commercial harvesting certain number of field staff became surplus and the Forest Developments Corporation decided for retrenchment and consequently a High Powered Committee was constituted by the Board of Directors of the N.-W.F.P. Forest Development Corporation with the following mandate:-- "(i) Identify the posts which have become surplus and irrelevant due to rapid decrease in work load, both in the headquarter as well as in the field formation.
(ii) Identify personnel who could be retained on the basis of merit, past performance good service record etc. Their future retention in service to be co-related and defined on the basis of proper job description.
(iii) To evolve/work out a procedure to relieve the surplus employees through the Golden Hand Shake policy."
9. The attention of learned Additional Advocate-General was invited to term (ii) of the mandate, as mentioned hereinabove, which in our view has not been complied with in letter and spirit. The mandatory pre-requisites for retention in service were as follows:--
(i) Merit;
(ii) Past performance; and
(iii) Service record.
10. The question which requires determination seems to be that as to whether the case of appellant has been examined pursuant to term (ii) of the above formulated policy or otherwise? It is not denied by the learned Additional Advocate-General that appellant was selected and appointed as Deputy Forest Manager in the N.-W.F.P. Forest Development Corporation and he was also sent for M.Sc. Forestry which must be due to satisfactory performance of the appellant. It is also an admitted feature of the case that the appellant completed two years course and obtained degree of M.Sc. In Ist Division in 1985 and served as Deputy Forest Manager in the N.-W.F.P. Forest Development Corporation till 1993. It is not the case of respondents that the services of appellant were terminated on account of inefficiency or poor service record. It, however, reveals from the scrutiny of record that appellant while serving in the Barani Area Development Project under the Planning Development Department of N.-W.F.P. Government was terminated by means of Office Order No,FDC/ADMN/11317, dated 31-10-1998 by the Managing Director, N.-W.F.P. Forest Development Corporation in oblivion of the fact that the appellant had never opted for Golden Hand Shake Scheme and no record in rebuttal could be produced by the learned Additional Advocate-General except that compensation was received by the appellant, which would have no substantial bearing on merits of the case as it has come on record that compensation was received under protest and that too after issuance of notice for the collection of cheque within one month failing which the appellant was to be held responsible for the consequences. We are not persuaded to agree with the issue of Golden Hand Shake Scheme that it was negotiated by the representative of the employees before its finalization for the simple reason that at that point of time the appellant was on deputation, hence the question of appointment of any representative on his behalf does not arise. The significant question that how, when, where and by whom the merits, past performance and service record of the appellant for making his retrenchment was examined/assessed could not be answered by the learned Additional Advocate-General, duly assisted by the representative of the concerned Department along with relevant record. There is no denying the fact that appellant is a highly qualified person, having rich experience, skill and knowledge in Forestry and on the basis whereof he was sent for M.Sc. Forestry and secured Ist Division in 1985. We are of the considered view that qualification, experience and service record of the appellant was never considered and his services were terminated in a mechanical manner without diligent application of mind and in violation of the principles of natural justice. It is well- settled by now that "in all proceedings by whomsoever held, whether judicial, quasi-judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. In the absence of any express words in the enactment giving such power excluding the application of the principles of natural justice, the Courts of law are inclined generally to imply that the power so given A is coupled with a duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a given case". Ghulam Mustafa v. Islamic Republic of Pakistan 1982 CLC 1665, Khawaj Din v. Rationing Controller Food, Faisalabad PLD1980 Lah. 15, Mushtaq Ahmad v. Ghulam Muhammad 1984 CLC 3451, Abdus Saboor Khan v. Karachi University PLD 1966 SC 536, University of Dacca v. Zakir Ahmed PLD 1965 SC 90. It has further been observed that no plausible justification could be furnished for the retention of Mr. Roohul Amin, Deputy Director (respondent No,3). Thee learned Additional Advocate-General could not justify it either on moral or legal grounds. In such view of the matter the only inescapable inference would be that the principle of universal application i,e, 'last come first go,' has been violated. It is thus a case of sheer discrimination which means "making a distinction or difference between things; a distinction; a difference; a distinguishing mark or characteristic; the power of observing difference accurately, or of making exact distinctions; discernment". But discrimination against a group or an individual implies making an adverse distinction with regard to some benefit, advantage or facility. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context." (Shirin Munir v. Government of Punjab PLD 1990 SC 295). It is well-settled by now that "among equals the law should be equal and I should be equally administered and that the like should be treated alike.' I (Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7). It is worth-mentioning that one Mr. Shahzada Qamar Zaib was retrenched from service under the Golden Hand Shake Scheme but later on his appeal for reinstatement in service was accepted on the basis of his seniority which could not be done in the case of appellant for the reasons best known to the concerned authorities.
11. The upshot of the above mentioned discussion is that Office Order No, FDC/ADMN/11317, dated 31- 10-1998 is declared unlawful and without any legal effect and accordingly it is set aside. The N.- W.F.P. Forest Development Corporation is hereby directed to retain the appellant in service and orders to this effect be made immediately. The question of back benefits be decided by the Competent Authority in accordance with law and on merits. The appeal is accordingly accepted.