' AHMAD ALI M. SHAIKH, .J.--- By this single order, we propose to dispose of C.P. No, D-1372 of 2009 and C.P. No, D-1373 of 2009 as in both the petitions, impugned order is one and the same.
2. Brief facts giving rise to the filing of these petitions are that respondent No,1 published an advertisement in the national dailies on 15th and 16th May, 2009 for career opportunities in the Intellectual Property Organization of Pakistan (IPO) i.e, Director (IP), Controller of Patents, Deputy Director (IP), Deputy Director Finance, Deputy Director Legal, Deputy Registrar, of Trade Marks, Assistant Director (Admin), Assistant Director (Legal), Assistant Director (IT), Assistant Director (Finance), Assistant Director '(IP), Patent Examiner, Protocol officer, Assistant Librarian, Superintendent, Senior IT Assistant, Copyright Assistant, Data Entry Operator, Dispatch Rider etc. On the terms and conditions stipulated in the said advertisement. The petitioners on the basis of their qualifications, applied for the aforesaid posts. On 27th May, 2009 the petitioners received a call letter from respondent No,3 requiring them to appear in the test and interview to be held on 31st May, 2009. The petitioners appeared before the Selection Committee comprising of Director General, IPO Islamabad, the Director (Admin) IPO Islamabad. The Registrar, Trade Marks Karachi and the Controller of Patents and Registrar of Design Karachi. Out of 4413 candidate 221 were short- listed and ultimately 56 candidates, including the petitioners, were recruited. The petitioners were issued Offer of Appointments on 31st May, 2009 which were accepted by them and consequently they joined their respective duties on 1st to 5th June, 2009. However. Vide letter bearing File No,06/Chairman/08 dated 6th July, 2009 issued by the Government of Pakistan, Intellectual'
Property Organization (IPO-Pakistan) whereby all new appointments including those of the petitioners were terminated.
3. In pursuance of the notices of these petitions issued to the respondents, they filed their respective comments. In the comments, respondent No, 2, the Chairman I.P.O. Supported the impugned order whereas respondent No,3 the D.G, took a different stand and supported the assertions made by the petitioners in their petitions.
4. It was contended by the learned counsel for the petitioners that the petitioners are highly qualified and experienced professionals in their respective field of education and have been appointed after observing due procedures and having passed their respective written and oral examinations conducted by the Selection Committee, as such they cannot be deprived of their vested rights having been created in their favour. It was further contended that the impugned order is hit by the established principle of locus poenitentiae as stipulated under section 21 of the General Clauses Act. It was further contended that the petitioners having been recruited on merits, they cannot be deprived of their services on the ground of any procedural irregularity. It was lastly contended that the arbitrary and unilateral acts of the respondents of cancelling the appointments of the petitioners are in violation of Article 25 of the Constitution as the recruitments made during the period 2005 to 2008 in the similar manner have already been regularized; as such the petitioners cannot be discriminated against.
5. Learned counsel for respondent No,2 contended that the petitions are not maintainable as the appointments of the petitioners were made by an incompetent authority; as such the petitioners have no cause of action to file the instant petitions. It was further contended that on the face of it, the entire process of recruitment does not seem to be transparent and the recruitments were made in a hasty manner inasmuch as the advertisement was published on 15th and 17th May, 2009 while the last date of receiving applications was fixed as 20th May, 2009, however, on the intervention of the Cabinet Division the last date of receipt of applications was extended to 29th, May, 2009 Such conduct on the part of respondent No,3 smacks of foulplay.
6. Learned D.A.-G. Appearing for the Federation of Pakistan adopted the arguments advanced by the learned counsel for respondent No, 2 .
7. We have heard learned counsel for the parties and the learned D.A.-G. And with their assistance, perused the memo of petition, comments and other material available on the record.
8. There is no dispute with regard to the eligibility and competency of the petitioners for recruitment/appointment to the aforesaid posts, however in the instant case it is alleged that the entire process of recruitment/appointment was carried out in an illegal and unlawful manner and the appointment orders were passed by an incompetent and unauthorized person, as such illegal and unlawful orders cannot be protected by this Court merely on the ground that the petitioners were eligible and competent to be appointed to the aforementioned posts.
9. We have noticed that the advertisement appeared in daily Dawn and from the perusal of the test letter, interview letters, appointment orders, medical fitness certificates and duty joining reports, we could not find an illegality or irregularity in the entire process of selection of the petitioners.
Applications were invited through advertisement which appeared in well reputed and widely circulated newspaper of the country. The petitioners possess the required qualification-cum- experience as per criteria laid down in the advertisement. They have qualified as well as been declared successful in the interview and then after observing all formalities they were issued appointment orders and ultimately they submitted their duty joining report before the concerned authority. In the circumstances, since the petitioners are highly qualified persons and since long they are serving with the respondents, and there is no complaint from any quarter with regard to their performance, hence we are of the view that the impugned orders issued by the respondents are bad in law, which are not sustainable and are liable to be set aside. No inquiry in regard to alleged illegality or lack of transparency has been B conducted by the respondents before withdrawing the appointment orders of the petitioners. The negligence, if any, on the part of the respondents cannot take away the rights of the petitioners, which have been created on the basis of the appointment letters which were issued after complying with all- the codal formalities.
Besides this, the petitioners have been condemned unheard which amounts to violation of principles of natural justice. Neither the petitioners were heard during the so called inquiry nor they were provided an opportunity of hearing, even on this single score alone, the impugned orders are not sustainable. The honourable Supreme Court in re: Abdul Jabbar Memon and others 1996 SCMR 1349 while inquiring into various complaints regarding violation of fundamental rights did not approve the method and procedure of the Government functionaries while making appointments without publicity and properly advertising vacancies whereas in the case in hand, proper publicity and advertisement was made through Daily Dawn which is the largest circulated newspaper, therefore, question of lack of transparency and irregularities in regard to the appointment of the petitioners is nothing but an afterthought as the respondents were bent upon to deprive the petitioners from their jobs in order to perhaps accommodate others. Once appointment letters have been issued then such appointment letters cannot be withdrawn. In the case of Suhail Jabbar Malak v. Province of I Sindh and 2 others (2009 PLC (C.S) 155) a Division Bench of this Court in similar circumstances where offer letters were issued to the petitioners and later on same were withdrawn by the Government, allowed the petition and held as under:-- "Sufficient material is available on record that all the prescribed procedures were followed and after inviting applications through press the respondent No,3 conducted written test and then conducted interviews of successful candidates and thereafter recommended their names for appointment. The, respondent No,2 after following all required procedures issued offer of appointment to petitioners. The petitioners submitted required documents along with acceptance letters within prescribed time. The respondents cannot after accepting recommendation recall the same and/or scrap the recommendation once accepted. Respondents are therefore, directed to issue posting orders within thirty days from the date of order and in case such posting orders are not issued then petitioners are entitled for payment/salary from such date."
10. The above order was challenged by the Province of Sindh through Chief Secretary Sindh and another through Civil Petitions Nos.426-K to 437-K, 445-K to 448-K of 2008 and 7-K to 17-K of 2009 before the honourable Supreme Court. The honourable Supreme Court while dismissing the petitions refused leave with following observations:-- "The High Court while deciding the instant cases has rightly arrived at the impugned conclusion by passing the above referred order and we also do not take any exceptions to the reasons and finding given by the High Court and do not see any reason to interfere with the same. Resultantly, all the petitions are dismissed and leave refused."
11. In the light of principle laid down by this Court in Suhail Jabbar Malak's case (supra), which was affirmed by honourable Supreme Court of Pakistan, we allow the instant petitions and set aside the impugned order dated 6th July, 2009. The petitioners would be entitled to the salaries/payment from the date of their appointment.