1. SALMAN HAMID, J.--- The case of the petitioners before us was that in pursuance to a public notice of 1-3-2005 of daily "Ibrat", they applied for the posts of BPS-1, 2 and 4 being eligible for the same and after having appeared before the Selection Committee for interview on 20th and 21st August, 2007 they were selected by it (Committee) and the merit list was prepared by it on 22-8-2007.
2. However, since there was a ban, appointment orders were not issued and upon its lift of on 17-11- 2007 for a day, appointments in BPS-1 to 4 were made and necessary office orders were released followed by fitness certificates. Petitioners submitted joining reports and started working on their respective posts against which the respondents also paid their salaries upto 31-3-2008. However, from 1-4-2008 salaries of the petitioners having been denied and discontinued, they were constrained to prefer present petition with the prayer of release of their salaries and declaration that if any order affecting their appointments was passed the same be declared as without lawful authority and of no legal effect and that the petitioners are legally and validly appointed persons in their respective posts with the respondents.
3. ' Comments on behalf of the respondents were filed wherein it was mentioned that the merit and interview list showing criterion of the petitioners was not traceable with the respondents and therefore, it was alleged that the appointments which were made by the respondent No,1 were forged and manipulated. Invigorating of ban for one day on 17-11-2007 was not denied or disputed.
4. However, it was pleaded that huge number of appointments in a lone day was not possible and that such appointments were made only in one district of Sindh. The dispatch entries made on the appointment letter were disputed on the ground that the same were imaginary. It was also stated in the comments that the respondent No,3 (E.D.O. Health Tharparkar, Mithi) was not competent to issue appointment letters without the approval of the competent authority. It was stated in the comments that since the appointment letters were made during caretaker regime, the same were of no legal effect and therefore, such were terminated vide office letter No,FDOH/TPR/1015/25, dated 22-5-2008. Lastly it was mentioned in the comments that the petition was not maintainable before this Court because of the bar of Article 212 of the Constitution of the Islamic Republic of Pakistan (1973) and at best the petitioners could either have filed representation before the Secretary, Health or could have agitated the same before the Sindh Service Tribunal. All these points were also argued by the learned counsel for the respondents at Bar.
5. ' Rebutting the learned counsel for the petitioners strenuously argued that the comments those were filed by the respondents impliedly as well as explicitly admit that the appointments were made by the respondent No,3. Not only this, after such appointments the services of the petitioners were also availed of against which they were also paid their due salaries which were discontinued from April, 2008 onwards and that the respondents arguing that the appointments were made during the caretaker regime in itself was an admission on their part that the appointments were made. Countering the arguments that the appointments were made during the caretaker regime, it was mentioned that such were made much prior to the regime of caretaker government, which came into being on 20-11-2007, whereas, the appointments were made on 17-11-2007. It was also argued in rebuttal that the very appointments which according to 'respondents' showing had been cancelled were against the principles of audi alterm partem, as no opportunity was given to the petitioners before passing order dated EDOH/TPR/1015/25, dated 22-5-2008. Combating arguments that the E.D.O. Was not competent and/or authorized by the competent authority to appoint the petitioners with the respondents, it was voiced that first of all the appointments were not at all illegal and had been made validly and in a lawful manner and even if it is presumed that such were illegal, its beneficiary cannot be blamed alone inasmuch as, primarily the authority who had actually exercised power wrongfully should be held responsible for such illegal exercise of power and not otherwise.
6. ' Heard arguments.
7. ' It may be noted that letter, dated 28-4-2008 was addressed by Section Officer (General) to various principals, directors, superintendents and E.D.Os., a copy whereof was also sent to respondent No,3 wherein it was essentially mentioned that all the appointments made after the announcement of election schedule and in violation of decision of Cabinet meeting dated 24-10- 2007 be cancelled, which it seems was following by Order, dated EDOH/TPR/1015/25, dated 22-5- 2008, whereby appointments of petitioners were purportedly cancelled inasmuch as that the petitioners expressed their ignorance about the same. Coming back to Letter, dated 28-4-2008, it would show that Chief Minister, Inspection Team was required therein to inquire into the appointments made during the regime of Ex-Chief Minister. Dr. Arbab Ghulam Rahim and submit report to the Chief Minister, Sindh within 30 days for his perusal and final decision and that the action was to be taken in accordance with rules/policy under intimation to the C.M. Secretariat. It seems that cancellation of appointments of the petitioners (the knowledge of which petitioners claim they had not) were passed without any inquiry and it was not proved to the hilt that the appointments were made during the caretaker regime thus were in violation of Cabinet meeting dated 24-10-2007.
8. Since the record of the case prima facie shows that the appointments were made much prior to the caretaker regime and therefore, did not fall prey to the condition precedent i.e, appointments during caretaker regime, the same could have not been cancelled and that too without hearing out the petitioners whose interest was at stake. Much emphasis was laid on Cabinet meeting dated 24-10-2007 from the side of respondents but the same was not brought on record to show that the appointments were indeed in violation thereof. Assuming that the appointments under point were made in violation of Cabinet meeting of 24-10-2007, still a question would arise whether at all such were cancelled after inquiry and report as envisaged in the letter of 28-4-2008 and after hearing the petitioners. The enticing answer would be in the downbeat. Condescending even further that inquiry was indeed conducted and report was submitted in such respect, again the issue that require consideration is whether the petitioners were heard? Again the answer is off-putting. In the case of Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others 2004 SCM R 1077 the honourable Supreme Court of Pakistan while deprecating the exercise of power by the government functionary in a wrongful manner observed "that Beneficiary of illegal appointments cannot be blamed alone because primarily the authority who had actually wrongfully exercised its powers, for the reasons known to it, was bound to be held responsible for the same and that instead of penalizing the petty employee like Chokidar, Naib-Qasid, junior clerk etc., who had to earn livelihood to support their families and if after having served for a long period they were removed from service discriminately, such action would not promote the cause of action (justice) and it would give rise to a number of problems and that instead of removing employees from service action should have been taken against the authority who wrongly exercised its powers.
9. ' From the above it would become clear as to where the axe should have fallen and where it actually fell which was appalling.
10. Having been equipped by the above observations of the honourable Supreme Court of Pakistan and looking at the facts and circumstances of the case in hand, we are prima facie of the opinion that veracity of appointments of the petitioners as contemplated in Letter dated 28-4-2008 is yet to be looked into, which be done now and be concluded by the respondents within a period of 30 days from the date hereof, whereafter, the petitioners would further be entitled to plead their case still ahead, if the need for the same arise before the Secretary Education and/or Services Tribunal.
11. The question of payment of the salaries of the petitioners from 1-4-2008 onwards shall be dependent upon the outcome of the proceedings before the Secretary Education and/or the Sindh Services Tribunal.
12. ' We would, therefore, dispose of the present petition in terms of the above, leaving the parties to bear their own costs.