' SH. AHMAD FAROOQ, J.--- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for declaring the order dated 14-4-2011 as illegal, without lawful authority and mala fide, whereby respondent No,2 has terminated his services. The petitioner has also prayed for passing a direction to the respondents to regularize his services along with 27 similarly placed employees.
2. Succinctly, the facts essential for the adjudication of the lis in hand are that the petitioner joined service on 31-1-2009 as Director (Planning and Evaluation) (BS-19) in the Planning, Monitoring and Evaluation Cell, Ministry of Communication on contract basis. Thereafter, the period of contractual appointment of the petitioner was extended for one year w.e.f. 1-7-2010, vide letter dated 25-10- 2010. The aforesaid PM & E Cell was given a permanent status in the Ministry of Communication and the case for regularization of the employees of the said Cell was sent to the Cabinet Sub- Committee for regularization. The criteria fixed for the purpose was that the age of the employee, in any case, should be less than 50 years for the purpose of regularization. Petitioner's name was included in the list for regularization. Names of all others, placed in similar position, recruited along with the petitioner, 27 in number, on assumption of charge by respondent No, 2 were sent to the committee for regularization of their services but the name of the petitioner was scored-off. Vide Office Order No 7 (10)/2009Admn (PM & E Cell) dated 11-10-2011, services of 27 persons were regularized but prior to that, the services of the petitioner were terminated, vide impugned order dated 14-4-2011 with one month pay in lieu of 30 days' notice. Petitioner at departmental level moved a' representation on 17-6-2010 to respondent No,2, wherein he contended that the contract of all the employees was intact till 30-6-2011. The Sub-Committee of the Cabinet took a decision on 7-2-2011 to regularize all the employees working in the monitoring Cell. In the meanwhile, the Secretary, Communication retired and the new incumbent took over the charge, who without assigning any reason or allegation against the petitioner, terminated his services, vide impugned order dated 14-4-2011.
3. . The respondents submitted their parawise comments, wherein, they raised a preliminary objection regarding the maintainability of the instant petition in this Court on the plea that the offices of the respondents and the place of employment of the petitioner are at Islamabad. They submitted that the services of the petitioner, being contractual in nature, are governed under the provisions of the Contract Act. They further submitted that the services of the petitioner were terminated on 14-4-2011 in accordance with the provisions of the contract and the departmental appeal, filed by him, was dismissed, vide letter dated 12-7-2011. They claimed that the petitioner was relieved of his contractual appointment, prior to the submission of case for regularization of the services of the remaining contract employees.
4. Learned counsel for the petitioner submitted that the termination of the services of the petitioner is not only illegal but also arbitrary and discriminatory in nature. He maintained that there was no allegation of misconduct against the petitioner, punishable under any provision of law, and as such, the termination of services of the petitioner was done with mala fide intentions. He claimed that the services of the petitioner could not be terminated without holding an inquiry. It was also argued that all others, who were recruited on the same day along with the petitioner, have been regularized in service but the petitioner has been dealt with discriminately. Reliance was placed on the cases of Mirza Rizwan Ahmed v. Chairman, Technical Education and Vocational Training Authority Government of Punjab, Lahore and another (2008 PLC (C.S.) 224), Shahid Farooq v. Water and Power Development Authority through Chairman and 3 others (2011 PLC (C.S.) 1034) and The Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 SCMR 1275).
5. Conversely, the learned Deputy Attorney-General appearing on behalf of the respondents argued that in presence of a specific condition appearing in the appointment letters dated 31-1- 2009 and 25-10-2010, the ' period of contract employment could be terminated in 30-days notice on either side or payment of basic pay in lieu thereof without assigning any reason. He contended that the impugned decision on the part of the department is based on sound judicial considerations and the same by no means can be termed as arbitrary or mala fide. It was also argued that the respondents passed the order at Islamabad; therefore, the Islamabad High Court has the jurisdiction to entertain the petition.
6. Arguments heard. Record perused.
7. From the record, it appears that four representations from 30-5-2011 to 24-9-2011 were made by the petitioner to the Prime Minister, Secretariat, whereupon respondent No,2 directed to put up the complete case but nothing was done at his end. The last directive dated 24-9-2011 reads as under:--- "2. It is regretted that despite of considerable time, response of the Ministry is still awaited. It is therefore requested that matter be responded with specific reference to the following points:-
(i) Whether services of the petitioner were terminated without observing legal procedure?
(ii) Whether all other employees, except the petition, working the Planning, Monitoring and Evaluation Cell of the Ministry have been reinstated on the same day they were terminated?
3. The Matter may be responded by 8th October, 2011 positively.
4. This issues with the approval of Chief Coordinator, Prime Minister's Grievances Wing."
' In the directive dated 19-8-2011, it was observed that the request of the petitioner has been examined thoroughly in the Prime Minister Secretariat and issue of his termination has been seriously considered. It was directed that the detailed report regarding termination of the said officer be forwarded to the secretariat within one week positively. From the record, it also appears that none of the directive issued from the Prime Minister Secretariat was attended to.
8. Much emphasis has been laid on the point that there is a specific condition in the letter that the department has absolute discretion to terminate the services of the petitioner without assigning any reason. Non-assigning of reasons, non-communication and non-existence of reasons thereof are entirely two different things. The termination of appointment without existence of any cogent reason or cause, in circumstances of the case, was not warranted and surely an act of mala fide.
When the afore-noted Cell acquired the Permanent status and decision in that regard had been taken on 7-2-2011, much before the impugned order was passed, the temporary rights attached to the appointment of the petitioner matured into permanent rights. Expression used in the appointment letter, 'contract appointment' is distinguishable from the appointment to a post under the Government in strict sense but this does not necessarily means that the petitioner, who is not a civil servant, is not holding any public office. Public element, surely, is attached to the appointment.
Therefore, in the given set of circumstances, the reasonable basis for the drastic and sweeping action should be there in support of the decision.
9. During the course of arguments and in the written statement, the learned Deputy Attorney- General has not attributed anything, adversely affecting the service rights of the petitioner, therefore, the manner in which the impugned order has been passed, is arbitrary. A similar question came-up for consideration in the case of Kumari Shrilekha Vidyarthi and others v. State of U.P. (AIR 1991 Supreme Court 537), wherein it was held:--- "The expression 'at any time' merely means that the termination may be made even during the subsistence of the term of appointment and 'without assigning any cause' means without communicating any cause to the appointee whose appointment is terminated. However, 'without assigning any cause' is not to be equated with 'without existence of any cause'. It merely means that the reason for which the termination is made need not to be assigned or communicated to the appointee. It was held in Liberty Oil Mills v. Union of India (1984) 3 SCC 465: (AIR 1984 SC 1271) that the expression 'without assigning any reason' implies that the decision has to be communicated, but reasons for the decision have not to be stated; but the reasons must exist, otherwise, the decision would be arbitrary. The non-assigning of reasons or the non- communication thereof may be based on public policy, but termination of an appointment without the existence of any cogent reason in furtherance of the object for which the power is given would be arbitrary and, therefore, against public policy." in the said judgment, a complete answer has been given with regard to the exercise of power of judicial review in the cases involving contractual appointment. The necessary import and implication of the afore-noted judgment from the Indian jurisdiction is that it would be unrealistic approach, if the State action, which contains a public element, be excluded from the power of judicial review. The whole concept of unfettered discretion is inappropriate to a public authority, which possesses power solely in order that it may be used for, public good. In the case of The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v.
Riaz-ul-Haq (1997 SCMR 1552), similar view was adopted and it was held that even from the terms of contract, it is unsafe to conclude that the controversy involved in the case centers around the contractual appointment, the Government servant is entitled to the domestic probe before the penalty of termination or any other kind is imposed. The termination itself contains a stigma and remains attached to the name of employee adversely affected. This court yet in another case Mirza Rizwan Ahmed v. Chairman, Technical Education and Vocational Training Authority Government of Punjab, Lahore and another (2008 PLC (C.S.) 224) took the same view that the contract employee's termination from service without holding any regular inquiry merely on the ground that the employee holds a contract job, does not justify the action. In Shahid Farooq v.
Water and Power Development Authority through Chairman and 3 others (2011 PLC (C.S.) 1034), while attracting the power of judicial review, the impugned order terminating the contract service was declared to be without lawful authority. The relevant portion of the judgment is reproduced hereunder:- ?"(i) The appointment orders of the petitioner also contains the condition that he will be governed by efficiency and discipline rules as amended from time to time by the authority. In ordinary course the appointment on contract could be terminated on one months notice or payment of one month's pay in lieu thereof by either side without assigning any reason. However, this condition was not attached to the termination on the grounds if petitioner was found guilty of dishonesty, misconduct, negligence, discipline or breach of trust. Conditions Nos.9 and 11 of the appointment orders may be perused for ready reference. The word 'found guilty" is very significant in Condition No, 11 of the orders ibid. A person can be found guilty after proper inquiry, on the basis of solid evidence and providing opportunity of hearing to the subject. Without following the proper procedure, the allegations how strong it may be, cannot be considered sufficient for finding a person guilty of the charge. Therefore, in the instant case the charge of "moral corruption" should have been properly investigated, inquired and proved after providing opportunity of hearing to the petitioner.
(ii) It is also not denied that similarly appointed employees on contract basis were regularized vide Order No,109858-81 dated 13th of May 2006 but petitioner was under termination due to registration of criminal case, in which he obtained acquittal order on 21-2-2006, before the regularization of other employees, therefore, petitioner should not have been deprived of regularization of his service on the grounds which did not exist at the time of regularization and he should not have been discriminated. Petitioner was also entitled to be treated equally without discrimination by the department as it is command of the Constitution of Pakistan in Article 25 that all citizens are equal before law and are entitled to equal protection of law. The apex Court also all the time stressed for equal, treatment between persons similarly placed."
10. In sequence of the same series, Rana Asif Nadeem v. Executive District Officer, Education, District Nankana and 2 others (2008 PLC (C.S.) 715), Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another (2004 PLC "(C.S.) 82) and Imran Ahmed Khan v. Pakistan through Secretary, Ministry of Defence and another (2008 PLC (C.S.) 820) are also quoted with advantage.
11. Uncontrolled and unguided discretion of an administrative authority will come in conflict with the equality of protection clause contained in the Chapter of Fundamental Rights, of the Constitution.
Equality of citizens certainly give rise to two basic questions: first to what extent the legislature can delegate the legislative functions to the other bodies and the other to what control the Judiciary can exercise over the department action and the atrocities of the executive. Where the provision of law is offending against the spirit of Article 8 and it has the effect of invasion upon the rights of the citizens by anybody, no matter by a private individual or public functionary, it cannot be justified on any scale. For achievement of laudable object, contained in Articles 4, 18 and 25 of the Constitution, the Court is entitled to strike down any provision if it is obnoxious to the Constitutional guarantee provided by Chapter of Fundamental Rights of the Constitution. During the course of arguments, as explained in the preceding paragraph, it was reiterated by the learned Deputy Attorney General that on the face of clause xiv of the appointment letter, the Constitutional petition is not maintainable#. Clause (xii) of the appointment letter in terms provides that in respect of Conduct and Discipline, Rules made and the instructions issued by the Government or a prescribed authority as for civil servants under sections 15 and 16 of the Civil Servants Act, 1973 as amended from time to time shall be fully applicable and for the purpose of filing appeal under clause xii, The Civil Servants (Appeal) Rules, 1977 shall be applicable mutatis mutant. This fact will surely steal the eminence that clause xvi of the appointment order discernibly provides that barring one clause 'of termination, in respect of other matter the Rules, Regulations as applicable to the Federal civil servants shall apply. In that the Civil Servants Act, 1973 has been fully made applicable. In such a situation in case of contract employees or where the Rules or Instructions adopted by the department are surrendered to the Statutory Rules or Statute the pleasure of the Master is subject to the control of the Government. In these circumstances, the employee would become entitled to the statutory protection in view of reiteration in The Evacuee Trust Property Board and another v.
Muhammad Nawaz (1983 SCMR 1275).
12. There is yet another reason to attract the power of judicial review that the petitioner in Paragraph No,5 of the petition has taken a' specific objection that the impugned exercise has been taken by respondent No,2 on the asking of the Federal Minister. In the written statement, the reply put-forward by respondent No,2 is evasive and there is no denial in specific terms; therefore, it has the effect of admission. E The apex Court dealt with the situation in more than one judgment that it is fundamental duty of the tamed Bureaucracy to run the business of Government on the basis of Business Rules, law applicable thereto and the Statute relevant on the subject. They should not behave subservient to the political personage in power. Reference may be made to Roshan Khan v.
Director Schools and Literacy, N.-W.F.P., Peshawar and others (2007 SCMR 599). This is beside the point that the power of appointment posting or transfer or inflicting penalty including the one of termination of service and removal etc. Is a creature of the Statute or the Rules made thereunder and such power is bestowed upon the competent authority, which can neither be controller nor guided by an officer of supervisory jurisdiction what to talk of the Minister or anybody else sitting at the helm of affairs. If the action is taken against some one on asking of a person not authority in the case, the whole proceedings from inception to tail stand vitiated. Syed Fayyaz Hussain Qadri v.
The Administrator, Lahore Municipal Corporation, Lahore and 4 others (PLD 1972 Lahore 316) refers.
13. As far the objection of territorial jurisdiction, suffice it to say that the said question has been dealt with in the case of LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1489 Lahore) wherein it was held that if the Government body or authority possesses or initiate the action at Islamabad but it effects the person aggrieved of putting up their abode within the jurisdiction of this Court and the order of termination was also conveyed to him at Lahore, this Court has the jurisdiction. Principle of rule of choice will become applicable in case of concurrent jurisdiction. The objection, in view of the afore-noted view taken in the supra judgment, carries no weight and is hereby repelled.
14. In view of the above discussion, this Court is of the considered opinion that laudable objects, contained in Articles 4, 18 and 25 of the Constitution, cannot be achieved until the actions of the departmental authorities are in accordance with law, impartial, transparent and without discrimination. The aforesaid Articles are the anchor sheet of the Constitution and their violation can be brought under the scrutiny of judicial review of this Court.
15. For the foregoing reasons, the instant petition is accepted and the impugned order dated 14-4- 2011, passed by respondent No,2, is declared illegal, without lawful authority and of no legal effect.
The respondents are directed to reinstate the petitioner in service immediately from the date he was terminated. However, the interregnum period of his termination will be considered as leave without pay. The respondents are further directed to process case of the petitioner for regularization of his services and get it finalized within a period of two months on the same criteria, which was applied in the case of other 27 similarly placed contract employees of the Planning, Monitoring and Evaluation Cell of the Ministry of Communication.