' NAEEM AKHTAR AFGHAN, J.---, This order disposes of Constitutional Petition No,22 of 2012, 'whereby the petitioners have claimed the following relief:--- "(a) To declare that action of official respondents is transgressed of authority and is having no legal effect being ab initio void.
(b) To declare that after issuing of appointment letter followed by joining reports services of petitioners are governed by prevailing laws of land therefore they cannot be removed froth services without adopting due process of law and/or petitioner being citizens of Pakistan enjoying the protection of law to be treated in accordance with law, is their inalienable rights which cannot be denied by exercising powers of executive authority in arbitrary manner.
(c) To declare that in view of doctrine of locus penitential the right of petitioners once accrued cannot be withdrawn under the garb of exercising power of competent authority.
(d) To declare that approval of minutes of Provincial Recruitment committee vide Letter No,S0- 1I(H)/1737/2011/29521, dated 29-12-2011 still holds the field and impugned letter No,SO-II(H)17- 37/2011/Nil, dated 2-1-2012 in respect of withdrawing has been issued without lawful. Authority thus does not hold-s field; having no legal affect being abs initio void.
(d) To direct the official respondents to refrain from their uncalled for whims and distiches, and refrain from illegal action and reactions, likeolestraining petitioners from entering into their place of employment.
(f) Any other relief which may deem fit and proper may also be awarded."
(2) Facts of the case are that after completion of all the codal formalities, the petitioner& were reconitnentled by the 'Provinciall s Recruitment Committee ,('Committee") for 'Appointritent in 'the 'Eye Hospital, Quetta againstthe vacant posts of 1 F'S,1 to BPg-12,1if-this 11' regard,. The minutes oldie netting of the Committee dated. December 20, 2011 were approved by the Competent Authority (respondent No,1) vide letter dated DeceMber 29, 2011 m the 'following Words: -- "The undersigned 'is directed to refer your letter No,1012 dated, 29th December, 2011 on the itibjeet noted above and' to ConVey approval of the Competent Authority regarding appointment of the candidates, .Who have been recommended by,,Departmental: Recruitment ComMittee, against the vacant posts of, B-1 to. B712 in Helper Eye Hospital, 'QuettS, after completion of all codal formalities."
' Pursuance of the above approval, appointment letters were issued in avour of the petitioners by the respondent No,3. The petitioneRs, sUbMitted their joining reports to the respondent No,3 Subsequently, vide Impugned letter dated January 2, 2012, the respondent No,1 withdrew his earlier approval for appointment of the petitioners in the following words:--- ' The undersigned is directed to refer to the subject cited above and to convey that approval granted for appointments against the vacant posts of B-1 to B-12 vide this department letter No, SO-11(H)17-37/2011/ 29521 dated 29-12-2011 is hereby withdrawn.
(2) The said posts may be re-advertised immediately,"
3. The respondent No,1 submitted parawise comments stating therein that the unsuccessful candidates contacted him with the plea that the process of test and interview was interrupted by some influentials. It was further stated that the Medical Superintendent of the Helper Eye Hospital Quetta namely Dr. Elahi Bakhsh (Chairman of the Committee/ respondent No,3) was due to retire on December 31, 2011 and he finalized the orders in hurry on December 29, 2011.
' The respondent No,3 filed para wise comments wherein it was stated that he simply implemented the order dated January 2, 2012, of respondent No,1 being the Competent Authority, but he did not stop the petitioners from entering in the premises of the hospital.
4. As the case was ripe for hearing, the same was admitted for regular hearing on December 6, 2012. Mr. Baz Muhammad IKakar, learned counsel for the petitioners stated that the appointments of the petitioners were made on merits and apart from Medical Superintendent of Helper Eye Hospital, being Chairman of the Committee, Deputy Director (Admin) Provincial Health Directorate, Medical Officer Helper Eye Hospital and the Section Officer-II Health Department, Civil Secretariat Quetta were the members of the Committee. The Chairman of the Committee along with three members signed the merit list of each category and there was no act of favouritism or malpractice on the part of the Chairman. Learned counsel further stated that the recommendation of the Committee was duly approved by the respondent No,1 on December 29, 2011, in pursuance whereof appointment letters were issued to the petitioners and the petitioners submitted their join ing reports, whereafter there was no occasion for respondent No,1 to withdraw his earlier approval vide impugned letter without assigning any reason.
5. Learned Additional Advocate General (A.A.-G.), while contesting the petition stated that the petitioners being appointed as government employees cannot invoke the constitutional jurisdiction of this Court for redressal of their grievance in view of the bar of jurisdiction under Article 212 of the Constitution. Learned A.A.-G. Relied upon the case of Peer Muhammad v.
Government of Balochistan (2007 SCMR 54).
6. Perusal of the record reveals that the matter does not relate to the terms and conditions of service of the petitioners, rather it relates to the validity/legality of the impugned letter issued by the respondent No,
1. Since the controversy does not relate to the terms and conditions of the service of the petitioners as envisaged under Chapter-II of the Civil Servant Act, 1973, the remedy of appeal under section 4 of the Service Tribunals Act, 1973 before the Service Tribunal would not be available to the petitioners, therefore, the bar of jurisdiction under Article 212 of the Constitution would not restrain this Court from exercising jurisdiction under Article 199 of the Constitution.
Reliance in this regard was placed on the case of Province of Punjab v. Sarwari Begum (2004 SCMR 279). Reference was also made to the case of Asjad Mahmood v, Federation of Pakistan (2002 PLC (C.S.) 1161). The judgment relied upon by the learned A.A.-G. (2007 SCMR 54) is not relevant as in that case the matter of transfer/posting of the petitioner as 'Director General Agriculture Extension' was held to be related to the terms and conditions of a Government Servant falling within the exclusive jurisdiction of the Service Tribunal. Therefore, the objection raised by the learned A.A.-G. Is repelled.
7. The petitioners had applied to different posts of Assistant Computer Operator, Eye Technician, O.T. Technician, X-Ray Assistant, Lab Assistant, Storekeeper, Aya,and Mali. The applications were invited through an advertisement, a number of candidates applied for the posts and separate merit lists were prepared for each post. Scrutiny of each merit list reveals that the petitioners belong to different regions of Balochistan, attained the highest marks on merit for the respective post and were unanimously recommended by the Committee. Thereafter, the respondent No,1 duly approved the minutes of the meeting/ , recommendation of the Committee on December 29, 2011 on the basis whereof the respondent No,3 issued the appointment letters of the petitioners and the petitioners duly submitted their joining reports. On the fifth day of the approval of the recommendations, the respondent No,1 issued the impugned letter, whereby his earlier approval for appointments of the petitioners was withdrawn without assigning any -reason. The reasons stated in the para wise comments by respondent No,1 have not been mentioned in the impugned letter.
Nothing has been brought on record by the respondent No,1 to supplement the contents of his para wise comments. And not a single application has been placed on record by the respondent No,1 with regard to the alleged complaints by the unsuccessful candidates. There, is also nothing on record to tentatively displace initial presumption of correctness attached to the official act of the Committee in recommending the, petitioneRs, Nor is any bias,mala fide or favouritism apparent from the record.
Section 24-A(2) of the General Clauses Act, 1897 regulates the exercise of powers by the State functionaries. It recognizes the doctrine that where the Statute confers powers to make any order or give any direction to any authority, office or person, the same should be exercised reasonably, fairly, justly and for advancement of the purpose of the. Enactment. Section 24-A(2) reads as under:- "(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for assuming direction and shall provide a copy of the order or as the case may be the direction to the person affected prejudicially."
Admittedly, the impugned letter issued by respondent No,1 is without any reasoning nor has any illegality or irregularity been pointed out in making the said appointments. After issuance of appointment letters of the petitioners and submission of their joining reports, valuable right had accrued in their favor but the respondent No,1, vide impugned letter, has condemned the petitioners unheard. The valuable right having been accrued to the petitioners could not have been snatched away without providing them opportunity of hearing. Reliance in this regard is placed on the case of Chairman Development Authority v. Sajjad Ahmed Sheikh 2004 PLC (C.S.)
1095. The impugned letter does not point out any illegality and being issued without first providing an opportunity of hearing to the petitioners is amenable to the constitutional jurisdiction of this Court. Reference in this regard is made to the case of Syed Yousaf Ali Shah v. Administrator Municipal Corporation Bahawalpur (2002 PLC (C.S.) 1451).
8. The earlier approval of the recommendation of the Committee by respondent No,1 had already been acted upon/given effect to as the respondent No,3 issued appointment letters in favor of the petitioners, who also submitted their joining reports. Consequent to the withdrawal of the approval by the respondent No,1, termination orders of the petitioners have not been issued and their appointment orders are still intact. The appointment of the petitioners subsequent to the approval by the respondent No,1, has given rise to a vested right, which cannot be taken away after having been acted upon. According to the principle of locus penitential, the power of receding and going back on a decision is available to an authority only upto the time such decision has not been carried into effect. Reference in this regard is made to the case of Mumtaz Hussain v. D.M/D.C., Khairpur (1990 PCr.LJ 1784) and the case of Ghulam Muhammad v. Superintending Engineer (1998 PLC (C.S.) 87). This however, does not mean that illegal appointments can be similarly sustained, as an illegality cannot create vested rights, but in the matter of these appointments no illegality has been pointed out.
9. The impugned letter dated January 2, 2012 issued by the respondent No,1 is, therefore, declared null, void and of no legal effect. Consequently, the petitioners are declared to have lawfully been appointed by the respondent No,3 on the recommendation of the Committee, duly approved by the respondent No,
1. However, since the petitioners have not been working since the issuance of the impugned letter, they will not be entitled to receive remuneration for such period. The petitioners also did not claim salary for such period.
' The petition is allowed in the aforesaid terms, but with no order as to costs.