' SHUJAAT ALI KHAN, J.--- By virtue of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called in question the vires of order dated 11-7-2013 passed by the Provincial Ombudsman, Punjab, Lahore (hereinafter referred to be as "the Ombudsman) and the subsequent order dated 23-7-2013 passed by respondent No,1, whereby the services of the petitioners were terminated.
2. Unnecessary details apart, the relevant facts for disposal of the instant petition are that the City District Government, Lahore floated an advertisement in daily "Nawa-e-Waqat" dated 12-6-2011 for recruitment against different posts. The petitioners along with others including respondent No,3, pursuant to the said advertisement applied against the post of Accountant (BS-14) and upon completion of the process, the petitioners were selected as Accountants (BS-14) by virtue of appointment letters dated 20-8-2011. As respondent No,3, who was also a candidate along with the petitioners, could not be selected, he filed Writ Petition No,851 of 2012 before this Court which was disposed of on 17-1-2012 and the matter was referred to the Secretary Local Government and Community Development Department, Lahore (Respondent No,2) who, after hearing respondent No,3, dismissed his representation. Thereafter, respondent No,3 instituted Writ Petition No,7138 of 2012 before this Court which was disposed of with the direction to respondent No,2 to look into the matter. In compliance with the order passed by this Court in above referred writ petition, respondent No,2 decided the matter against respondent No,3 vide order dated 19-1-2013. Once again, respondent No,3 preferred Writ Petition No,10838 of 2013 which was disposed of with the direction to respondent No,2 to look into the grievance of respondent No,3. When the matter was pending before respondent No,2 pursuant to order dated 30-4-2013 passed in W.P.No,10838 of 2013, respondent No,3 filed an application before the Ombudsman, who vide order dated 11-7-2013, held that the recruitment against the posts of Accountants was violative of Recruitment Policy, 2004 and quashed the same. As a result, City District Government, Lahore was directed to refer the matter to the Punjab Public Service Commission. On the strength of the order passed by the Ombudsman, District Co-ordination Officer, Lahore by virtue of order dated 23-7-2013, has dispensed with the services of the petitioners and has referred the posts to Punjab Public Service Commission through Local Government and Community Development Department, Lahore for fresh recruitment as per rules and policy.
3. The arguments put forth by the learned counsel for the petitioners can be summed up in the words that the order passed by the Ombudsman is violative of universally acknowledged principle of Audi Alterm Partem as the petitioners were never associated in the proceedings conducted on the complaint filed by respondent No,3; that respondent No,3 after having filed three successive writ petitions before this Court challenging the recruitment pursuant to the aforementioned advertisement was debarred to invoke the jurisdiction of the Ombudsman; the order passed by the Ombudsman is corum non-judice as he had no authority to look into the selection criteria of the petitioners; that the Ombudsman could not take cognizance of the matter when the same was pending adjudication before respondent No,2 pursuant to order dated 30-4-2013 passed in Writ Petition No,10838 of 2013; that though the Ombudsman has observed that selection was made in violation of the Recruitment Policy, 2004 but penalizing only the petitioners speaks volume, about the discriminatory attitude of the Ombudsman; that the case of the petitioners is covered under the principle of locus poenitentiae because after joining the duty, the petitioners have already served for a period of more than two years and that the impugned orders are not tenable.
4. Learned counsel appearing on behalf of respondent No 1, while defending the impugned orders, submits that the Ombudsman had the power to look into the complaint filed by respondent No,3 as the matter was not conclusively decided by this Court rather in the three writ petitions filed by respondent No,3, the matter was referred to respondent No,2 to look into the grievance of respondent No,3, therefore, those orders could not be made ground to oust the jurisdiction of the Ombudsman; that the orders passed by the Ombudsman is appealable in view of section 32 of the Punjab Office of the Ombudsman Act, 1997 thus, this petition is not maintainable; that the order passed by the Ombudsman having binding force, on respondent No,1, the services of the petitioners have rightly been dispensed with and that contract cannot be enforced through a writ petition.
5. Learned Assistant Advocate General though stated that as a matter of fact the issue is between the petitioners and respondent No,1 but in presence of alternate remedy by way of appeal under section 32 of the Punjab Office of the Ombudsman Act, 1997 writ petition is not maintainable.
6. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that when the order impugned is patently illegal, writ petition is maintainable and no body can be knocked out on the basis of availability of alternate remedy. In support of his contentions, he has relied upon the cases reported as Member (Colonies) Board of Revenue, Punjab, Lahore and others v. Muhammad Shafi and others (2008 SCMR 589), Pakistan Defence Officers Housing Authority Karachi v. Shamim Khan through L.Rs and 5 others (PLD 2005 SC 592), Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others (2006 SCMR 1356), Malik Nazar Hussain v. National Bank of Pakistan and another (2004 SCMR 28) and Muhammad Hafeez v. Judge Family Court and others (2013 CLC 470).
7. I have heard the learned counsel for the parties at length and have also gone through the documents appended with this petition in addition to the case-law cited at the bar.
8. A perusal of the documents appended with this petition shows that respondent No,3 filed W.P.No,851 of 2012 for his appointment which was disposed of vide order dated 17-1-2012 with the direction to respondent No,2 herein to look into his grievance, who vide order dated 8-2-2012 decided the same against respondent No,3. Again respondent No,3 filed Writ Petition No,7138 of 2012 Challenging order dated 8-2-2012 passed by respondent No,2 which was disposed of vide order dated 13-11-2012 with the direction to respondent No,2 to look into the matter and decide the same within four weeks from the receipt of certified copy of the order. Once again respondent No,2 took up the matter pursuant to order dated 13-11-2012 passed in W.P.No,7138 of 2012 and decided the same against respondent No,3 by virtue of order dated 19-1-2013. Being dissatisfied. respondent No,3 filed third Writ Petition bearing No,10838 of 2013 which was disposed of on 30-4-2013 with the direction to respondent No,2 to decide the review petition filed by respondent No,3. Pursuant to order dated 30-4-2013 passed in W.P.No,10838 of 2013, the matter was pending before respondent No,2 when respondent No,3 submitted an application before the Ombudsman on 23-5-2013 with the following prayer:-- "Kindly direct the D.C.O. Lahore to implement on Article 19-A of the Constitution of Islamic Republic of Pakistan and provide me the attested mark sheet/merit list of Accountants (BS-14) signed by the Chairman and Members of the Recruitment Committee appointed in the year 2011, by the D.C.O. Lahore as soon as possible and also the proceedings must have been made at the earliest in order to take action against D.C.O. LAHORE, DO (HRM) and DDO Litigation for violating the Constitution of Islamic Republic of Pakistan."
' A perusal of the afore-quoted prayer made by respondent No,3 in his application filed before the Ombudsman on 23-5-2013 makes it abundantly clear that he never challenged the recruitment of any body including the petitioners. Further, while submitting his reply pursuant to A the notice issued by this Court respondent No,3 has submitted his parawise comments wherein in reply to Ground (d) of this petition, respondent No,3 has admitted that he had no grievance against the petitioners rather he agitated the matter against respondent No, 1.
9. From the above factual position it is more than clear that the matter before the Ombudsman was only regarding provision of the record qua the recruitment process conducted pursuant to the aforementioned advertisement and no body agitated any grievance against the petitioners, thus, the order passed by the Ombudsman cannot be allowed to hold the field even for a moment as it is established law that relief cannot be granted beyond the prayer clause. Reliance in this regard is placed on the cases reported as Citi Bank N.A. v. Shahansha Hussain (2009 CLD 1564) wherein a learned Division Bench of the Sindh High Court while dealing with the issue has inter alia held as under:--- "With regard to the other argument taken by appellant's counsel that the Banking Court not have awarded compensatory cost as the same was not claimed in the suit, we are of the opinion that there is sufficient force in this argument. From the contents of the plaint we have noticed that award of compensatory costs was completely beyond the pleadings of the respondent. In fact in paragraph 7 of the plaint the respondent has himself stated that he reserves his right to claim damages. Therefore, there was no legal justification for the Banking Court to travel beyond the scope of the pleadings and award compensatory costs on it own. On the basis of the respondent's pleadings, the appellant knew that at best the suit would be decreed against him in terms of the prayer clause. Therefore, the Court should not pass a decree which is beyond the scope of the pleadings more particularly when a defendant chooses not to contest the proceedings. No defendant to a suit who is being proceeded ex parte can be taken by surprise and burdened with a decree which is beyond the scope of the pleadings of the plaintiff.
' We therefore, hold that there was no legal justification to award any compensatory costs to the respondent. The respondent ought to have claimed such compensation in the plaint and sought relief regarding thereto in the prayer clause. In the absence of such pleadings, no decree could be passed on that account. The decree passed by the Banking Court in so far as it relates to award of compensation was beyond the pleadings of the respondent and is liable to be set aside."
' Even otherwise, respondent No,3 while seeking indulgence of the Ombudsman for provision of record relating to the recruitment process also groused against the conduct of respondent No,1 but the Ombudsman while declaring the recruitment of petitioners as illegal did not write even a word about his conduct. The said approach being violative of the law laid down in the case reported as Dr. Nighat Bibi v. Secretary, Ministry of Health (2009 SCMR 775) cannot be approved. While dealing with the similar issue the apex court of the country in the case of Nighat Bibi (supra) has inter alia observed as under:-- "* If the competent authority was of the view that some higher authority had no jurisdiction, it would have shown the courage to disobey the order. Once it is not done, the step so taken cannot be subsequently retraced by the Government if the incumbent otherwise was eligible for the benefit so granted. Nobody can doubt the eligibility of the petitioner keeping in view her past service record and qualifications."
10. Another important question is as to whether after entertaining three writ petitions by this Court regarding the non-recruitment of respondent No,3 and passing of the order, the Ombudsman could look into the recruitment process despite observing in his order, impugned in this petition, that this Court was already cognizant of the matter pursuant to the different petitions filed by respondent No,3. There is no cavil with the preposition that the Ombudsman can entertain the complaint regarding uncalled for conduct of a government official/official but he cannot be allowed to declare the appointment of the persons who neither were party before him nor any relief was claimed against them by the complainant.
11. Now coming to the objection raised by the learned A.A.-G. as well as the learned counsel appearing on behalf of respondent No,1 that in presence of alternate remedy against the order passed by the Ombudsman by way of appeal under section 32 of the Punjab Office of the Ombudsman Act, 1997, this petition is not maintainable, I am of the view that though in routine, when alternate remedy is available, the Constitutional petition is not maintainable but in the cases where the order impugned is patently illegal or without jurisdiction, the Constitutional jurisdiction of this Court cannot be abridged on account of availability of alternate remedy rather this Court, being custodian of fundamental rights of the citizens of the country, is under obligation to take care of the orders passed by the executives and quasi judicial forums when the same are brought before it in a Constitutional petition. Reliance in this regard is placed on the cases reported as Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Siddiqa Faiz and others (PLD 2008 SC 135), The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279) Messrs Ahmed Clinic v. Government of Sindh (2003 CLC 1196). In the case of Muslimabad Cooperative Housing Society Ltd. (supra), the apex Court of the country while dealing with the preposition, under discussion, has laid law to the following effect:--- "Learned counsel for the. petitioner has failed to point out that the award in question is hit by any of the above conditions. Even otherwise in our view the order dated 17-1-1991 passed by Deputy Registrar clearly falls beyond the scope of section 54-A of the Act, as such was rightly set aside by the learned High Court in exercise of writ jurisdiction vide impugned judgment. On the aspect whether writ lies before the High Court when alternate and efficacious remedy is available, it would be appropriate to refer to the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others (PLD 1972 SC 279). It has been held therein that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. Moreover, learned counsel for the petitioner could not point out any misreading or non-reading in the impugned judgment, which is accordingly maintained. The petition being devoid of force is dismissed and leave to appeal refused."
' Even otherwise, though the order passed by the Ombudsman is appealable but the petitioners, being contract employees, had no alternate remedy except to invoke the Constitutional jurisdiction of this Court against the order passed by respondent No,1 whereby the services of the petitioners were dispensed with.
12. Another important limb of the case, under discussion, is that though the appointments of the petitioners have been declared violative of Recruitment Policy, 2004, the Ombudsman prior to holding their appointments as illegal, did not afford them an opportunity of hearing thus, deprived them the opportunity of hearing. In this backdrop, the order passed by the Ombudsman cannot be blessed with blanket of authenticity when the same is violative of universally acknowledged principle of audi alteram partem which has gained much importance after insertion of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973. Further the principle of audi alteram partem is not only applicable to the judicial proceedings rather the same is to be strictly followed in the quasi judicial proceedings. Reliance in this regard can be placed on the case reported as Messrs Dewan Salman Fiber Ltd. and others v. Government of N.-W.F.P., through Secretary, Revenue Department, Peshawar and others (PLD 2004 SC 44)
12-A. Another astonishing feature regarding conduct of respondent No,1 is that according to order passed by Ombudsman, District Co- ordination Officer, Lahore admitted the irregularities regarding the recruitment in question but while submitting their parawise comments, respondent No,1 has admitted the contents of Para-11 of the Constitutional petition, which for facility of reference is reproduced as under:-- "That the brief facts giving rise for filing the instant writ petition are that respondent No,1 got published an advertisement in Daily Nawai-Waqt in its issue dated 12-6-2011 for recruitment on contract basis against various posts in City District Government Lahore including the post of Accountants (BPS-14). The petitioners, along with others applied for against the said post. After going through the recruitment process, the petitioners were selected by the Departmental Selection Committee comprising District Coordination Officer, City District Government Lahore, Executive District Office (Finance and Planning) City District Government Lahore, DCO, City District Government Lahore, Administrator City District Government Lahore, Resultantly the petitioners were issued appointment letter on 20-8-2011 by respondent No, 1."
13. The conduct of respondent No,1 portrayed above speaks volume about mala fide on his part inasmuch as on the one hand, while appearing before the Ombudsman, he has admitted that the recruitment was not in line with the procedure laid in the Recruitment Policy, 2004 but while submitting parawise comments before this Court, has admitted that process was conducted by a lawful constituted committee as petitioners were appointed after undergoing the process.
14. It is also important to mention over here that after having been appointed, the petitioners have already served the department for more than two years out of total period of their contract i.e, three years, thus, their case is also covered under the principle of locus poenitentiae especially when there is nothing on record to show that there was any material against them or they used any illegal means while getting their appointments. It is observed with anguished pain that though the petitioners services have been terminated pursuant to the order passed by the Ombudsman but there is nothing on record to show as to whether any action has been 'taken against the persons who were members of the recruitment process. In view of the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases of Director Social Welfare, N.-W.F.P. Peshawar v.
Sadullah Khan (1996 SCMR 1350), Chairman; Minimum Wage Board Peshawar and another v.
Fayyaz Khan Khattak (1999 SCMR 1004), Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303), Muhammad Akhtar Shirani and others v.
Punjab Text Book Board and others (2004 SCMR 1077) and 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), no employee can be penalized until and unless the responsible are taken to task. In the case of Muhammad Akhtar Shirani and others (supra), the Hon'ble Supreme Court has dealt the said issue in the following manner:--- "It may be observed that for such reason beneficiary cannot be blamed alone because primarily the authority who had actually mis-exercised his powers, for the reasons known to it, is bound to be held responsible for the same, instead of penalizing the petty employees like Chowkidar, Naib- Qasid, junior clerks etc. who have to earn livelihood to support their families and if after having served for a long period they are removed from service discriminately, such action would not promote the cause of action and it would give rise to a number of problems to them. In this regard at a number of occasions, it has been held by this Court that instead of removing the employees from service, action should have been taken against the authority who had mis- exercised its powers. Reliance in this behalf can be made to the judgment reported as. Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724. Relevant paras therefrom are reproduced herein below:--- ' As far as second argument is concerned, same is also not acceptable because a perusal of appointment letter reproduced herein above indicates that the appointment was given to them with reference to their applications and subsequent tests/ interviews which would mean that they were also recruited on merits. In view of such position statement of the learned counsel that respondents got their appointment due to political influence does not seem to be correct.
Assuming that appointments of some of the respondents were contrary to Rules/Regulations then the authority who was in the helm of the affairs may have declined to honour the directions of political personalities. However, for any flaw or defect in the appointment as far as respondents are concerned, they cannot be blamed as it has been held in the case. of Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah.
Khan 1996 SCMR 413."
6. It is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described 'purely temporary basis'. The petitioners have now turned around and terminated their services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The case of the petitioner was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality irregularity in reinstating the respondent."
16. It is important to mention over here that the main reason advanced by the Ombudsman while passing the impugned order is that interview of the petitioners was conducted by incompetent persons. In this respect, it is observed that the committee constituted for appointment against the posts falling under BS-12 to BS-15 besides appointing the petitioners, other persons were also recruited against the posts ranging from BS-12 to BS-15 but penal action against the petitioners only makes it a classical case of discrimination. Thus, the order passed by the Ombudsman cannot be authenticated.
17. Now coming to the contention of the learned counsel appearing on behalf of respondent No,1 that contract of employment cannot be enforced through Constitutional petition, I am of the view that when there is termination of contract simplicitor the jurisdiction of this Court is ousted but in the case in hand the petitioners have put a challenge to the order passed by the Ombudsman at their back and the subsequent order passed by respondent No,1 regarding dispensing with their services. Thus, the objection raised is hereby spurned.
18. For what has been discussed above, I have no doubt in my mind to hold that, while passing the impugned order, the Ombudsman went beyond the prayer clause of the application filed before him by respondent No,3 and that too without associating the petitioners. Moreover, penal action against the petitioners alone to the exclusion of the other similarly placed persons who were interviewed and appointed by the same recruitment committee. Further, the orders passed by respondent No,1 are also not tenable. As a result, this petition is accepted and the impugned orders are set aside, There shall be no order as to costs.