' IJAZ UL AHSAN, J.-- Pursuant to an advertisement in daily newspapers on 18-10-2009, the petitioners applied for the posts of Naib Qasids/ Gardeners/ Drivers/ Telephone Operators/ Watchmen/ Junior Clerks. Pursuant to the applications received, call letters were issued to the applicants. Tests were conducted whereafter the selection committee interviewed the petitioners and appointment letters were issued to them on 7-4-2010. According to the terms and conditions of the appointment letters, the petitioners were appointed for a period of three years. The petitioner joined their respective services. However, subsequently vide order dated 31-5-2010 ("Impugned Order"), their services were suddenly terminated on the ground that they had been appointed without observance of codal formalities.
2.The petitioners approached this Court. The respondents were called upon to file their comments.
In their comments, respondents Nos.1 and 2 have taken the position that the petitioners were appointed in violation and without fulfilling the codal formalities. However, respondents Nos.3, 4 and 5, who have also filed their parawise comments, have stated that they were the members of the selection committee, had conducted interviews and after considering their suitability had recommended appointment of the petitioners on merit and in accordance with the contract policy.
3. The learned counsel for the petitioners submits that the impugned order is in violation of the rights guaranteed to the petitioners under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. He maintains that neither any notice was served on the petitioners nor were they granted personal hearing. Even if the petitioners had been employed on contract basis, they were entitled to fair treatment and their rights under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan were violated. The learned counsel adds that the petitioners were also entitled to a fair trial under due process of law. In support of his contention, reliance has been placed by the learned counsel for the petitioners on Saiyyid Abul A'laMudoodi and others v. The Government of West Pakistan and others (PLD 1964 SC 673), Fauji Foundation and another v. Shanzimur Rchman (PLD 1983 SC 457), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, through Prime Minister and another (PLD 1989 Karachi 404).
4. In support of his contention that the petitioners despite being contract employees were entitled to notice, the learned counsel has placed reliance on Said Karim v. Inspector-General of Police, N.- W.F.P., Peshawar and another (1998 PSC CS 337 sic).
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5. The learned counsel for the petitioners further argues that the honourable Supreme Court of Pakistan has held that even if a person is to be condemned for misconduct and even if he is employed on contract basis or probation, he is entitled to fair trial and an opportunity should be granted to him to clear his name.
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6. The learned counsel points out that in case the petitioners had been appointed in violation of the codal formalities as submitted in the parawise comments of respondents Nos.1 and 2, they could not have been condemned unheard. The petitioners were entitled to due process of law, which provides for a show-cause notice and a meaningful hearing to the aggrieved party. Reliance is placed on Muhammad Aslam v. Vice-Chairman and others (2010 PLC (C.S.) 266), Naubahar All v.
Vice-Chancellor and others (2010 PLC (C.S.) 783), Khurram Shahzad and 56 others v. The District Education Officer (Colleges) Sialkot and 3 others (2010 PLC (C.S.) 406) and Shahid Mahboob Rana and another v. Additional District Judge, Faisalabad and 2 others (2006 PLC (C.S.) 707). The learned counsel adds that even if the appointments were irregular on account of lapses on the part of the appointing authority, the said lapses could not have been made basis to deprive the petitioners of the rights guaranteed to them under the Constitution as well as the law. Reliance is placed in this regard on Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303), Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others (2007 PLC (C.S.) 179) and Dr. M. Sohail Karim Hashmi v. Federation of Pakistan, through Secretary, Ministry of Health and another (2009 SCMR 1472). The learned counsel, therefore, submits that the impugned order cannot sustain. He argues that the petitioners are entitled to be reinstated.
7. The learned Additional Advocate General on the other hand submits that the appointments were made on 7-4-2010. The same were terminated on 31-5-2010. He points out that the letter of termination was signed by the DOR Chiniot. He maintains that after the posts had been advertised, a meeting of the Departmental Recruitment Committee was held between 16-11-2009 to 21-11-2009.
In this regard he has drawn my attention to notification dated 14-5-2004 in which Item No,viii provides for the constitution of committees at the district level. He points out that such committees are required to consist of the DCO, EDO, EDO (F&P), a representative of the appointing authority, i,e,, the Member Board of Revenue and the District Officer etc. The quorum for holding such meetings is at least five members and decisions are required to be taken by majority. He submits that Mr. Maqbool Ahmad and Syed Zahid Hussain Jafri were appointed as representatives of the Board of Revenue to attend such meetings.
8. The learned counsel has also referred to letter dated 5-12-2009 issued by the Board of Revenue.
Through the said letter the Board of Revenue has raised objections regarding the meeting of the Departmental Recruitment Committee held between 16-11-2009 to 21-11-2009. Reference has also been made to letter dated 19-12-2009 issued by the Board of Revenue to the DOR regarding the appointments and to submit a report. The learned counsel argues that despite report being called by the Board of Revenue, minutes of the meeting were issued on 21-11-2009, which were signed by EDO(R), District Officer (Finance and planning). DDO(R) Lalian also signed the minutes as member of the Committee.
9. It appears that vide letter dated 3-4-2010, the DCO called a fresh meeting of the Departmental Recruitment Committee on 6-4-2010.
' The aforementioned representatives of the Board of Revenue never attended this meeting.
However, appointment letters were issued to the petitioners the very next day i,e, 7-4-2010.
10. The learned counsel for the respondent has drawn my attention to the appointment letters which have been signed by the DDO(R), Lalian, instead of DO(R), Chiniot, who according to the rules was the appointing authority. Reference has also been made to letter dated 4-12-2009 issued by the District Accounts Officer, Chiniot, addressed to the DCO wherein objections regarding the appointments had been raised. The learned counsel has also referred to lettel- dated 5-5-2010 issued by DO(R), Chiniot, to District Accounts Officer apparently in response to the aforesaid objections. In the said letter it has categorically been stated that no other person had been given charge of the post by the S.&G.A.D. Department to perform functions in his place. Further, the appointment letters were never signed by him. He, therefore, accepts no responsibility/liability for the appointments in question. Subsequently, vide letter dated 13-5-2010, the DCO issued a letter explaining the circumstances in which the DDO(R), Lalian was transposed to deputize for DO(R), Chiniot. It was stated that during the process of recruitment the father of DO(R), Chiniot, had fallen sick. The DO (R) had proceeded on leave from 16-11-2009 to 21-11-2009. It was, therefore, considered appropriate to co-opt the DDO(R) Lalian in his place to perform the same functions so as not to disrupt the process of recruitment which, according to him, would have led to discontentment and disappointment amongst the candidates who had travelled from far off areas. Vide letter dated 25-11-2009 the Board of Revenue directed the DOR to cancel the appointments. Consequently, vide letter dated 31-5-2010 the services of the petitioners were terminated for the reason that their appointments had been made without observing codal formalities.
11. The learned counsel has referred to ministerial service rules which appear to be relevant for the purpose of undertaking appointments in government departments. He has pointed out that for the appointments of Junior Clerks, Gardners, Naib Qasids, Farrashes and Malies etc., the appointing authority is DOR. He submits that the concerned officer in the present case was DOR, Chiniot, and his powers and functions could not have been transfered to DDO(R), Lalian.
12. Reference has also been made to letter written by Maqbool Ahmad and Syed Zahid Hussain Jafri to EDO(R) complaining that recruitments had not been made on merit and there had been irregularities in the recruitment process. It was on the basis of these complaints that the concerned department had written its letter dated 19-12-2009 calling upon the EDO(R) to stop the process immediately. He submits that despite clear and unambiguous instructions by the concerned department, the same were disregarded and the recruitment process was continued which culminated in issuance of appointment letters which had to be terminated/withdrawn subsequently. The learned counsel further argues that the Board of Revenue also recommended that disciplinary proceedings be initiated against the DOR and others who are involved in the aforesaid process.
13. I have heard the learned counsel for the parties and examined the record.
14. The respondents published advertisements in newspapers for appointments against posts of Naib Qasids /Gardners/Drivers/Telephone Operators/Watchmen/Junior Clerks etc. The petitioners applied for the said posts. Tests and interviews were conducted by a Selection Committee.
Subsequently appointment letters were issued to the petitioners on 7-4-2010 appointing them for an initial period of three years. The appointment letters were acted upon. The petitioners joined their respective posts and started receiving salaries. Subsequently, they received letters of termination on 31-5-2010 informing them that their services had been terminated. The said action was taken on the ground that the appointments had been made without observing modal formalities.
15. It may be noted at the very outset that it is not the case of the respondents that the petitioners were recruited on the basis of political considerations or any financial corruption was involved on the part of the officials involved in the recruitment process. It has also not been argued that the petitioners were either not qualified or did not fulfill the criteria for appointment to the posts against which they were appointed. It is also not denied that appointment letters were issued in favour of the petitioners, they were allowed to join duty and they were paid salary for the period during which they performed services. The record does not indicate that any show cause notice or disciplinary action had been initiated against any of the petitioners. The learned Additional Advocate General has not denied that the petitioners were neither heard nor given any opportunity to defend themselves. The case of the respondents is that the Recruitment Committee was required to consist of the DCO, EDO, EDO (Finance and Planning), representative of the Board of Revenue and the District Office. The District Officer (Revenue) Chiniot, was the appointing authority of the petitioners under the rules. His father fell sick. Consequently he went on leave from 16-11-2009 to 21-11-2009. However, in order to ensure that the process of recruitment was not disrupted on account of his absence, the District Officer (Revenue), Chiniot, appointed the Deputy District Officer (Revenue), Lalian to act in this place and represent him in the meeting. The said functions were duly performed together with other members of the Recruitment committee which included the EDO(R), District Officer (Finance and Planning) and DO (R), Lalian. It is also significant to point out that the meeting was also- attended by the concerned DCO. All members of the Committee signed the minutes of the meeting on 21-11-2009 and there was consensus regarding appointments to be made. Vide letter dated 3-4-2010, a fresh meeting of the Departmental Recruitment Committee was called for 6-4-2010. Pursuant to the meeting dated 6-4-2010, appointment letters were issued to the petitioners on 7-4-2010. The appointment letters were signed by DDO(R), Lalian, who was deputizing in place of DO(R), Chiniot, who was the appointing authority under the rules.
16. It appears that objections were raised against the letters being signed by the DDO(R), Lalian.
However, the District Officer, who was the appointing authority, defended his action, gave an explanation and took the position that there was nothing illegal about delegation of power of appointments made on his behalf under the signatures of DDO(R), Lalian.
17. The main argument advanced by the learned Additional Advocate-General is that the delegation was not valid. Therefore the appointment letters signed by the delegate were not valid letters.
18. I have carefully considered the argument of learned Additional Advocate-General. I find that at best it is a hyper technical argument which is neither adecpate nor sufficient to justify the mode and manner adopted by the respondents to terminate the services of the petitioners. Even otherwise the act of issuance of appointment letters was a mere formality and was the culmination of the process of recruitments carried out by a duly appointed committee, which has defended and owned the process. Valuable rights had, therefore, accrued in favour of the petitioners, which could not be taken away on the basis of mere technicalities more so where there was no fault on the part of the petitioners.
19. The petitioners who have no insight or knowledge of the working of Government Departments, bona fide filed applications for recruitment against certain posts, in different categories advertised by the respondents. Their applications were processed, applicants found suitable were called for interview by a panel consisting of various officers who short listed the petitioners for appointment.
With the consensus of all concerned the list of successful candidates was made and appointment letters were issued by a person who was prima facie authorized to do so. It has nowhere been alleged that the petitioners did not qualify for the posts against which they were appointed or there was foul play, favouritism, or financial corruption involved. Nevertheless, on account of rigid or implausible positions taken by the departmental functionaries against each other, the employment of the petitioners, who are poor citizens of the country, were put to an end without any just or fair reason or justification. I have noticed with grave concern that while strong and divergent positions were taken regarding validity or invalidity of actions taken by various departmental functionaries, no heed was paid to the plight of the petitioners who faced the hatchet without any fault on their part. Further State functionaries totally lost sight of the fact that once the petitioners had been appointed, valuable right guaranteed to them under the Constitution of Islamic Republic of Pakistan, 1973 had accrued in their favour which could not lightly be taken away without due process of law. Whether the petitioners were validly or invalidly appointed was subject to the rights of the petitioners to due process of law as enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan. Even if the petitioners had been appointed on contract basis, they were to be accorded fair treatment under the law in terms of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. In this regard reference may usefully be made to Saiyyid Abul A'laMuddodi and others v. The Government of West Pakistan and others (PLD 1964 SC 673); Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457); Sharaf Faridi and 3 others v. Federation of Pakistan through Prime Minister and another (PLD 1989 Karachi 404).
20. The principal argument of the learned Additional Advocate-General is that the appointments were in violation of the rules. Even if for the sake of argument, the stance taken by the learned Additional Advocate-General is taken to be correct, the same did not mean that the petitioners were not entitled to their due process rights which are guaranteed under the Constitution. Even in that eventuality the department was under a legal and Constitutional obligation to issue notice, grant an opportunity to the petitioners to defend themselves in a meaningful hearing. In failing to meet the minimum criteria which is necessary to uphold any departmental action, the Constitutional rights of the petitioners were violated. In such circumstances, this Court cannot fold its arms and stand as a helpless bystander. This Court is a guardian of the Constitutional rights of citizens. It is obligatory upon it to interfere where such.rights are denied to them by state functionaries. In support of this proposition reference may be made to Muhammad Aslam v. Vice- Chairman and others (2010 PLC (C.S.) 266); Naubabhar Ali v. Vice-Chancellor and others (2010 PLC (C.S.) 783); Khurram Shahzad and 56 others v. The District Education Officer (Colleges) Sialkot and 3 others (2010 PLC (C.S.) 406) and Shahid Mahboob Rana and another v. Additional District Judge, Faisalabad and 2 others (2006 PLC (C.S.) 707).
21. The Hon'ble Supreme Court of Pakistan in various celebrated judgments has held that even if an appointment is illegal, a citizen cannot be deprived of a right which is guaranteed to him under the Constitution of Islamic Republic of Pakistan. In this regard reliance can be placed on Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303); Abdul Salim v. Government of N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others (2007 PLC (C.S.) 179) and Dr. M. Sohail Karim Hashmi v.
Federation of Pakistan, through Secretary, Ministry of Health and another (2009 SCMR 1472). To be "treated in accordance with law and the right of due process lies at the foundation of the concept of rule of law. It has been recognized as a fundamental right in the scheme of our constitution. It is an admitted fact that the 'petitioners were deprived of this right without just cause.
22. On the basis of principles of law enunciated above, in the facts and circumstances of the present case, I am in no manner of doubt that the actions of the departmental functionaries whereby the services of the petitioners were terminated suddenly and abruptly without so much as a show-cause notice, an opportunity of being heard and a chance to defend themselves does not meet even the basic benchmarks against which state actions are to be judged. These are important and fundamental principles of natural justice, jealously and vigorously guarded by Courts. These mandatory requirements which are the grundnorm of any civilized system of administration of justice were ignored and violated which has led to injustice and violation of fundamental rights of the petitioners. I, therefore, feel no hesitation in holding that the impugned letters of termination/termination orders are not sustainable at law.
23. Before conclusion of arguments of the learned counsel for the parties, the learned counsel for the petitioners placed on record an order dated 7th January, 2013 passed by the Chief Minister/Competent Authority communicated by Secretary (Services) on behalf of the Competent Authority. It was pointed out that respondents Nos.3 and 5, against whom an inquiry had earlier been initiated in the matter of these appointments, had been exonerated by the Competent Authority of the charges levelled against them. It would be beneficial to reproduce the relevant portion of the order passed by the Competent Authority:-- ' "After due examination of facts of the case, findings/ recommendations of the Inquiry Officer and averments made by the accused officers before the designated Hearing Officer, it is observed that although certain lapses have been found in the process of recruitment, but no mala fide intention is attributed to the accused officers, who acted in their respective capacities as Members of the Recruitment Committed in good faith. Therefore, in exercise of powers under section 13(3) of the PEEDA Act, 2006, Rana Muhammad Tahir Khan, Ex-DCO, Chiniot (now Additional Secretary, Transport Department) and Mr. Muhammad Tariq Khan Niazi, Ex-DDO (Rev.), Lalian/D.O. (Rev.), Chiniot (now District Monitoring Officer, Commissioner Office, Faisalabad), are exonerated of the charges levelled against them."
24. A perusal of the afore-noted order indicates that the Competent Authority came to the conclusion that there was no mala fide intention attributed to the said respondents who acted in their respective capacities as members of Recruitment Committee in good faith. In view of the aforesaid findings, the position taken by the respondents has become indefensible. It is hard to argue that on the one hand the officials who had undertaken the exercise of recruitment of the petitioners had acted without mala fide and in good faith yet on the other hand the petitioners who had been appointed by them could not hold the posts against which they had lawfully been appointed by the said officers. Such a result would be self-contradictory and absurd. Having exonerated respondents Nos.3 and 5 of any illegality or wrong doing, there remains no force in stance of the respondent Government that the appointments made by them were illegal and could not be allowed to stand. This is one more reason why the termination orders dated 31-5-2010 are not sustainable.
25. For reasons recorded above, the termination letters/orders issued by the respondents are set aside. Keeping in view the concerns expressed on behalf of the respondents, in the interest of justice and with the consent of learned counsel for the petitioners, the respondents are directed to re-process the cases of the petitioners by adopting the following procedure:---
(a) A Committee shall be constituted consisting of fair impartial and sufficiently senior officers within seven days from the date of receipt of a certified copy of this order. The committee shall hold its first meeting within 15 days thereafter. The Committee shall individually examine the case of each petitioner after granting him a meaningful hearing.
(b) In case any of the petitioners has submitted a fake document, there is any criminal case pending against him, is not a resident of the area for which recruitments were made or otherwise does not meet the eligibility criteria provided in the advertisement on the basis of which he was appointed, such petitioner shall not be inducted into service. All other petitioners shall be deemed to have been reinstated into service with effect from the date op which their services were terminated. However, their three years contract shall commence from the date on which they are directed to take charge.
(c) The committee shall conclude its work within a maximum period of 30 days from the date of its first meeting.
(d) The petitioners have voluntarily and of their own free will agreed to give up and forego any claim for back benefits of any nature.
(e) The cases of the petitioners shall be considered for regularization on the same criteria as other similarly placed employees at the appropriate time.
(f) All the petitioners shall appear before the Executive District Officer (R), Chiniot, provide him their latest addresses and contact numbers for the purpose of being summoned to appear before the Committee.
26. This petition is allowed in the afore-noted terms.