CH. MUHAMMAD TARIQ, J.--- This consolidated judgment shall dispose of Writ Petition No,5158 of 2010, Writ Petition No,269 of 2011, Writ Petition No,2324 of 2010, Writ Petition No,4629 of 2010, Writ Petition No,565 of 2009, Writ Petition No,1375 of 2008 and Criminal Original No,267-W of 2010 as common questions of law and fats are involved therein.
2. The cause of action as given in these petitions is that after devolution plan and promulgation of Punjab Local Government Ordinance, 2001, district governments were established. On the summary/report of District Government Attock, Punjab Government sanctioned 879 posts through different orders for different departments under District Government Attock. Applications for appointment against the said posts were invited. The petitioners along with others submitted applications.
3. After due scrutiny and process of test/interview, the petitioners were appointed on contract basis for an initial period of three years vide letter dated 20-11-2007. Accordingly, the petitioners joined their duties and started receiving salaries. A resolution for regularization of services of the petitioners was also passed by Zila Council; Attock unanimously. The matter of regularization of services of the petitioners was submitted through a summary by respondent No,2 to the then Chief Minister Punjab who approved the same. The tenure of service of the petitioners was also extended for further three years. However, vide letter dated 12-9-2008, respondent No,3 declared the appointments of the petitioners 'irregular' and stopped payment of salaries to the petitioners on the ground that approval of Finance Department for creation of the posts in question was not obtained.
4. Aggrieved by this action of respondents, a Writ Petition, No,1375 of 2008 was filed whereupon this Court admitted the writ petition for regular hearing and suspended the operation of letter dated 12- 9-2008 issued by respondent No,3 and all subsequent orders passed in pursuance thereof. Since the salaries of the petitioners were not released, a Contempt Petition bearing Criminal Original No,8-W of 2009 was also filed whereupon the salaries of the petitioners were released and the criminal original petition was disposed of. Later on, the Government of Punjab vide Notifications No,DS(O&M)5-3/2004/Contract(MF) dated 14-10-2009 and No,SO(SE-111)2-16/2007, dated 19-10- 2009 regularized the services of different departments, however, the respondents being not ready to declare the petitioners as regular employees again stopped their salaries. Hence these petitions.
5. Learned counsel for the petitioners inter alia contends that the District Government Attock made a proclamation for appointment of 564 employees in the year 2007. The petitioners and others applied for appointment against the said posts. Scrutiny committee/recruitment committee was constituted by the competent authority who examined the cases of the petitioners and ultimately, vide order dated 20-11-2007, the petitioners were appointed on contract basis for an initial period of 3 years.
6. Learned counsel further contends that a summary was also submitted to the Chief Minister for regularization of appointments of the petitioners who vide order dated 20-11-2007 approved the extension in period of contract in respect of the employees recruited by the District Government Attock in various departments up to the age of 60 years. The petitioners had been performing their duties regularly and had been receiving monthly salaries but all of sudden, the respondents stopped not only payment of salaries to the petitioners but also challenged the validity of the appointments of the petitioners on the ground that no such posts were created by the Finance Department, so recruitment of the petitioners against their respec.Tive posts was an illegality.
7. Learned counsel for the petitioners has next argued that the petitioners belong to poor families who are facing starvation because of non-payment of their salaries. Neither the petitioners are guilty of misconduct nor they remained absent from their duties.
8. Learned counsel for the petitioners has pointed out that the salary bills of the petitioners were received by the District Accounts Office, Attock which were duly passed and cheque in this regard was also issued to District Officer (Roads), Attock but the payment of salary to the petitioners was unlawfully withheld by the District Government which is not justifiable under the law, therefore, the writ petitions and criminal original petition in hand be accepted as prayed for therein.
9. Conversely, learned Assistant Advocate-General on the instructions of District Co-ordination Officer and District Officer (Roads) of Attock has vehemently opposed all these petitions on the grounds that the basic appointment of the petitioners is void ab initio as the posts against the petitioners have been appointed were not created by the Finance Department, so the appointments of the petitioners are illegal. Further contends that the petitioners are guilty of misconduct as they are absent from their duties since long. Further argues that so-called.
Summary dated 20-10-2007 sent by Abdul Razzaq Malik, District Coordination Officer Attock to the Chief Minister Punjab and Office letter No,2502/AOC/DCO/ATK, dated 20-11-2010 are forged and fabricated documents.
10. Learned Law Officer further avers that the District Coordination Officer is not competent to directly submit any summary to the Chief Minister. The signatures of DCO, Attock as well as those of the then Principal Secretary to Chief Minister Punjab are forged and inquiry in this behalf is going to be initiated. The petitioners were though appointed on contract basis but their tenure has since been lapsed and their contract period was never extended. The appointments of the petitioners were politically motivated which suffer from mala fide and were in deviation of the codal formalities. The recruitment orders were coram non judice and void ab initio.
11. Learned Law Officer has further argued that the writ petitions are hit by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The respondents have not violated the order of this Court, therefore, writ petitions as well as contempt petition be dismissed.
12. I have heard the arguments put forth by learned counsel for the parties and have also perused the record with their able assistance.
13. There is no denial that proclamations were made in daily "Khabrain" of 8-7-2007 and 2-10-2007 whereby respondents advertised 564 posts of BPS-1 and provided qualifications etc. For the candidates. In pursuance of advertisement, the petitioners and others applied for their appointment against the said posts, the applications of the candidates were duly scrutinized by the scrutiny committee constituted by the competent authority and after test/interview, the petitioners were appointed on contract basis for a period of three years. Thereafter, District Co- ordination Officer, Attock sent a summary to the Chief Minister Punjab with the request that the services of the petitioners be regularized. The summary mentioned herein above bears the signatures of District Co-ordination Officer Attock dated 20-10-2007 as well as those of then Principal Secretary to the Chief Minister Punjab. The Official letter dated 20-11-2007 was also issued from the District Coordination Officer, Attock addressed to all the Executive District Officers in the District Attock. This letter bears the signatures of DCO, Attock along with the signatures of Office Superintendent of Zila Nazim Secretariat, Attock as well as his stamp.
14. Admittedly, the petitioners after selection joined their duties and started their work. The respondents had been paying and the petitioners had been receiving salaries. Afterwards, objection raised by respondents that the appointments of the petitioners against their respective posts having been made without the prior approval of the Finance Department is not sustainable in the eye of law.
15. The petitioners are petty employees who could not be blamed if the concerned- department has failed to get approval of the Finance Department for the posts in question before employing the petitioners. It is an admitted position that the petitioners applied for their appointment against the posts in pursuance of advertisements made by the concerned authorities. After having been examined by the Scrutiny Committee/ Recruitment Committee, the respondents had appointed the petitioners and had been paying the monthly salaries to the petitioners who have been receiving the same. So, if there is any illegality committed by the respondents, the petitioners cannot be penalized for the same as they were employees of BPS-1 like Baildar etc. Who had to earn their livelihood for themselves and to support their families as well. They had been serving since 20-11-2007. The action of respondents could not promote the cause of action rather it would give rise to a number of problems. Moreover, the appointees could not be condemned subsequently with the change of Heads of Department or at other level. Government was an institution in perpetuity and its orders could not be reversed simply because the Heads had changed. Such act of the departmental authority was all the more unjustified when the candidate was otherwise fully eligible and qualified to hold the job. During the arguments, learned Law Officer could also not produce any evidence about absence or misconduct of the petitioners. The apex Court has held that in cases where the appointments made by the authorities were illegal and made in violation of relevant recruitment rules, salaries of employees cannot be withheld, rather action should be initiated against those who were sitting at the helm of affairs for such irregularities. Employees could not be held responsible for the same. Where substantial justice had been done, the same could not be disturbed on mere technicalities. Direction to withhold the salaries of the employees suffered from inherent vice, same was void ab initio and could not be given effect. I am fortified by the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in case titled as, "Administrator, District Council Larkana and another v. Ghulab Khan and 5 others" reported as 2001 SCM R 1320.
16. Issuing of cheque in respect of salary of the petitioners was not only categorically confirmed by Qazi Javed Iqbal, Assistant Accounts Officer, Attock who appeared before this Court on 24-3-2011 but also not denied by the respondents. Learned counsel for the petitioners has rightly stated that withholding of payment of salaries to the petitioners at this juncture when the cheque upon the bills submitted by the concerned department had been prepared and issued to District Officer (Roads), Attock is unjustified and this action of the respondents tantamounts to economic assassination of the petitioners and their families.
17. So far as the contention of learned Law Officer that so-called summary sent by DCO, Attock to the then Chief Minister Punjab and order of approval are forged and fabricated documents is concerned, though this contention seems to be an afterthought, yet the respondents/competent authorities are at liberty to conduct inquiry, in this behalf strictly in accordance with law. The questions relating to regularization of services of the petitioners, misconduct etc. Be determined in the light of law laid down by the Hon'ble Supreme Court of Pakistan in case titled as, "Secretary (Schools) Government of Punjab, Education Department and others v. Yasmeen Bano" reported as 2010 SCM R 739.
18. In a nutshell, the petitioners are lawful employees of the District Government, Attock who were appointed after due course of law and the respondents have no authority to withhold their salaries as if the prior approval of Finance Department for creation of the posts has not been obtained, it is fault on the part of the District Government and not on the part of the petitioners. Appointment of an employee, if made illegally could not be Cancelled under Efficiency and Discipline Rules. Instead of taking action against such employee, action must be taken against Appointing Authority for committing a misconduct by making illegal appointment as per his own admission. Respectful reliance in this regard is placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case titled as, "Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali" reported as 2006 SCM R 678. Resultantly, all the writ petitions are accepted, the criminal original petition is DISPOSED of and the objection to the extent of sanction of Finance Department about the creation of posts is set aside as being void ab initio. Respondents are directed to pay the previous salaries/arrears as well as the future salaries to the petitioners forthwith. Respondents are further directed, to consider the cases of the petitioners for regularization of their services in the light of law laid down by Hon'ble Supreme Court of Pakistan in case titled as, "Secretary (Schools), Government of Punjab Education Department and others v.
Yasmeen Bano" reported as 2010 SCM R 739 and other relevant law. Till then, no adverse order in any manner be passed against the petitioners.