' NOOR-UL-HAQ N. QURESHI, J.--- Through this single judgment, writ petition as well as criminal original captioned above are being disposed of. The petitioner has invoked writ jurisdiction of this Court seeking following relief:--- ' "It is, therefore, most respectfully prayed that an appropriate writ may graciously be issued declaring that the Notification dated 3-9-2012 appointing respondent No,2 as Chairman,, Drug Court, Lahore is illegal, mala fide and without proper and judicious application of mind, unjust, unfair and also against the constitutional provision as enshrined in Articles 4, 9, 10-A, 14 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and as a consequence thereof the charge assumption of respondent No,2 as Chairman, Drug Court, Lahore in the absence of petitioner and after office hours is of no legal effect and without lawful authority and the petitioner is still holding the charge of the post of Chairman, Drug Court, Lahore with all its necessary perks and privileges. It is further prayed that respondent No,1 may be refrained from cancelling/withdrawing or terminating the Notification dated 15-2-2012 in any manner whatsoever. Any other relief which this Hon'ble Court may deem fit and proper be also granted accordingly."
' Whereas, through the criminal original, the petitioner seeks prosecution of the respondents for violating the orders of this Court dated 6-9-2012 passed in main writ petition through which respondents were directed not to recall the notification dated 15-2-2012 issued in favour of the petitioner. Moreover, to suspend operation of impugned F.I.R. as well as to release salary of the petitioner in terms of order referred above has been requested.
2. Brief facts emerging from the present writ petition are that petitioner was appointed as Chairman, Drug Court, Lahore vide Notification dated 15-2-2012 for a period of 2 years on contract basis with effect from the date of assumption of charge or till further orders, whichever is earlier. In pursuance of the said Notification, the petitioner assumed the charge of above referred Post on 16- 2-2012. On 3-9-2012, respondent No,2 entered into the office of the petitioner in his absence after office hours, as he has been appointed as Chairman, Drug Court, Lahore vide Notification of even date on contract for a period of 2-years on standard terms and conditions w,e,f, the date he assumes the charge. Against the said Notification, the petitioner has preferred this writ petition.
3. Learned counsel for the petitioner has argued that Notification dated 3-9-2012 issued by respondent No,1 is illegal, mala fide, without any lawful authority, or legal effect and violative of provisions of the Constitution as enshrined in Articles 4, 9, 10-A, 14 and 25; the said Notification has not been issued in supersession/cancelling or rescinding of earlier Notification dated 15-2-2012, whereby the petitioner as appointed on the very Post for a period of two years. Impugned notification has been issued without determining the value of earlier notification dated 15-2-2012.
Notification dated 3-9-2012 has been issued for another Drug Court under section 31(1) of the Drug Courts Act, 1976, it should have specify the territorial limits or the class of cases in respect of which, one of them shall exercise jurisdiction under the said Act. It means that respondent. No,1 has issued two notifications against the same post. The petitioner was appointed for 2 years and not on contract basis, as has been mentioned in the notification of respondent No,2, which clearly stipulates the wordings "on standard terms and conditions". In the Notification dated 15-2-2012, the wordings "or till further orders whichever is earlier" clearly shows that petitioner has been appointed for not less than two years, whereas these words are missing in the impugned notification, which indicate that services of respondent No,2 can be terminated at any time. Respondent No,2 has occupied the seat/chair of the petitioner in his absence after office hours, hence it is not possible for the petitioner to perform his duties. As the petitioner has not relinquished the charge of the said post, therefore, respondent No,2 has illegally taken over the charge. The respondents have acted with gross negligence and in clear violation of law and Constitution with mala fide and on political consideration. Thus Notification dated 3-9-2012 is also violative of principles of Promissory Estoppel.
Learned counsel for the petitioner has relied upon the following case-law:--- {{TABLE}}
(a) 2007 PLC (C.S.) 703 (b) 2005 PLC (C.S.) 80
(c) 2003 PLC (C.S.) 736 (d) 2002 PLC (C.S.) 233
(e) 1992 PLC (C.S.) 259 (f) 2004 SCMR 1419
(g) PLD 2009 Kar. 203 (h) PLD 1989 Lah. 175
(i) PLD 1979 Quetta 45 (j) 1992 CLC 115
(k) 1990 CLC 773 {{TABLE}}
4. Learned counsel for respondent No,2 has raised a preliminary objection that present writ petition is not maintainable in its present form, as the petitioner has concealed material facts. As the Notification dated 3-9-2012 was issued, hence working of petitioner till filing of this writ petition is denied; respondent No,2 assumed the charge of Chairman, Drug Court, Lahore on 3-9-2012 during the court hours in presence of two other members, hence allegation of entering after office hours and in the absence of petitioner is not correct. Notification dated 3-9-2012 and order for termination of contract of the petitioner has been issued by the competent authority simultaneously. The petitioner should have moved to respondent No,1 for redressal of his grievance instead of invoking writ jurisdiction. Lastly, he has argued that as the Notification dated 3-9-2012 has been issued in accordance with law and by the competent authority, hence instant writ petition may be dismissed with examplory cost.
5. The learned Standing Counsel while representing respondent No,1 'has argued that petitioner was appointed as Chairman, Drug Court, Lahore on 16-2-2012 for two years or till further orders. The word further orders empowers the appointing authority to terminate the service of a contract employee by giving one month notice or one month pay in lieu thereof. The services of the petitioner were terminated strictly in accordance with para-14 of the terms and conditions of the contract vide impugned notification, hence this petition is liable to be dismissed. The notification dated 3-9-2012 was issued after obtaining approval of the competent authority and in accordance with the contract agreement. The Drug Courts are established under the Drugs Act, 1976 and one Court is established for one administrative Division of Province of Punjab as Notification for appointment of respondent No,2 was issued after the termination of contract appointment of the petitioner, hence question regarding territorial jurisdiction of the drug court does not arise. The contract appointments are regulated under the standard terms and conditions of contract prescribed by the Federal Government and contract of petitioner was terminated in view of para- 14 of the said terms and conditions. The words "or till further orders whichever is earlier" clearly depicts that the contract appointment can be terminated at any time before the prescribed period given in the appointment letter. He lastly argued that since the contract appointment of the petitioner was terminated in accordance with prescribed rules/regulations after obtaining prior approval of the competent authority, hence the petitioner has no cause of action. He has prayed for dismissal of the instant writ petition.
6. Arguments heard, record perused. The relevant provisions of law quoted also perused as well as authorities referred.
7. Before discussing the merits and demerits of the case, I would like to clarify here that during the course of arguments controversy with regard to genuineness of some of the documents arose. The court, therefore, was constrained to pass order requiring the respondents to place both the summaries before the Court.
8. Beside the arguments advanced on behalf of both the contestants for same post i,e, Chairman Drug Court, Lahore some malfeasance on the part of law department appeared. By securitizing the matter, it appeared that neither legal requirements nor procedure is followed as such while floating summaries in respect of both the cases and thereafter the correspondence by issuing notification are not in transparent manner. In both the cases, mannerism adopted is very fishy, sketchy and based upon favourtism when the legal requirements have been frequently flouted. Before discussing the matter further, I would prefer to discuss the very issue raised by learned counsel for the petitioner with regard to the distinct features of the appointment. For convenience it is necessary to reproduce both the notifications herein below:--- ' "In exercise of the powers conferred by section 31(2) of the Drug Act, 1976 the Federal Government is pleased to appoint Mr.Aziz Ahmed Malik Advocate, Lahore as Chairman, Drug Court, Lahore, for a period of two years on contract basis with effect from the date of assumption of charge or till further orders which ever is earlier."
' "In exercise of the powers conferred by section 31(2) of the Drug Act, 1976 the Federal Government has appointed Syed Akhtar Hussain Zahid, District and Sessions Judge (Retd.) as Chairman, Drug Court, Lahore, on contract for a period of two years, on standard terms and conditions with effect from the date he assumes charge of the post."
' Though it is tried to convince that by mentioned 'till further order' denotes totally different nature of appointment to that of contract of two years. From the perusal of both the notifications, it is transpired that except standard conditions specified in the notification of appointment of Syed Akhtar Hussain Zahid, there is no any significant feature. The insertion of words 'till further orders' not provides any other presumption except the counting of period either from charge or till further orders which ever is earlier. From the date of assuming charge, the period of contract automatically started, which confines the period of two years only not beyond that. There fore, in my humble view, it is a similar type of contract period specified in both the notifications except that of "standard terms and conditions".
9. Number of persons since appointed on contract, therefore to institutionalize the method standard terms and conditions introduced by the Establishment Division has been specified in the following words:--- ' "Since a number of person are now being engaged on contract it was decided to institutionalize the method by drawing up a standard letter of contract containing the terms and conditions of contract appointment. Accordingly a standardized form of contract has been prepared in consultation with Ministry of Finance and Law Division. All the Ministries/Divisions are requested to use the standard form in all contract cases, in future."
' Every contract is required to be supported by standard terms and conditions mentioned in ESTACODE required to be followed. Condition No,14 defines termination or extension of the contract which is also reproduced here in below:--- ' "The appointment during the period of contract shall be liable to termination on 30-days notice on either side or payment of basic pay in lieu therefore, without assigning any reason."
' Surprisingly, other important ingredients required to be followed have IA not been mentioned in the standard terms and conditions issued at the time of issuance of notification for assuming charge.
10. When, it is requirement to be followed by the person employed on contract basis, rest of the instructions are also required to be followed. At the end of conditions there are some endorsement which defines the acceptance within period stipulated and in case of non acceptance same will be treated as cancelled. Therefore, such endorsement is also reproduced here in below:--- ' "If you accept the above terms and conditions of appointment please send your acceptance by registered post to the Establishment Division/Ministry of Defence/Ministry .... (Division/Department so as to reach the Establishment Division/Ministry of Defence/Ministry of Division/...department within one month of the date of this letter."
' "If the above terms and conditions of appointment are acceptable to you, please send your written confirmation by registered post or personally so as to reach the undersigned within one month of the date of this letter."
"This offer of appointment will be treated as cancelled if you do not convey acceptance thereof or resumed duty within the time specified in para-2 above."
11. On referring such terms and conditions which are known as standard terms and conditions to be followed by department as well as person employed on contract, in case if such instructions are not followed, it would be considered incomplete contract.
12. The case of petitioner Aziz Ahmed Malik as disclosed during the course of arguments by his counsel that he was not offered to sign such terms and conditions of contract either in its acceptance or refusal. Record shows that though terms and conditions of contract were seems to have been issued on 15-3-2012 containing signatures of Section Officer Noshad Khan on the very same day of notification for charge assumption has also been issued.
13. It is totally based upon imagination that a notification for assumption of charge was issued on the very same day but the petitioner was kept ignorant of the terms and conditions of contract employment when it is to be followed as integral part of the contract.
14. In case of respondent it is observed that a notification in his favour was issued on 3-9-2012 and terms and conditions of contract were issued and signed by same section officer on 11-9-2012 whereas received and accepted by Syed Akhtar Hussain Zahid on 16-9-2012. On the very same day notification for charge assumption has also been issued. In this regard, I have also carefully examined the summary floated for the Prime Minister with regard to the appointment of Syed Akthar Hussain Zahid as Chairman Drug Court, Lahore on contract basis. Surprisingly, in the very same summary at Para-4, it is contended that the contract of Mr.Aziz Ahmed Malik will be terminated. At the same time of contractual employment, how it can be terminated by enforcing its condition No,14, specifying the procedure of termination as referred above. From para-4 or the summary entirely, there appear no reason of replacing Syed Akhtar Hussain Zaidi in place of Mr.Aziz Ahmed Malik when both were considered from advocates.
15. From the perusal of record it depict that in both the cases neither the procedure is followed nor the prescribed guidelines by Sl.No,89 of ESTACODE referred above is taken into consideration.
Therefore, in my humble view both contractual employments are nothing but have been issued as a result of favourtism.
16. Reasons for cancellation/termination in case of Mr.Aziz Ahmed Malik have not been assigned nor reasons for employment of Syed Akhtar Hussain Zahid have been assigned. Even requirement of 30-days notice or payment of basic pay in lieu thereof has not been fulfilled..
17. The Hon'ble Supreme Court of Pakistan, while entertaining Constitutional Petitions Nos.23 of 2012 and 11 of 2012 and other Criminal Miscellaneous, Criminal Original and HR cases, observed the continuous conduct of the functionaries to ignore constitution and law therefore by enunciating principles, issued guidelines.
18. For the appointment. removal and promotion, the Hon'ble Supreme Court observed that same must be made in accordance with law and rules made there-under. For convenience, the relevant portion of the above referred judgment is also reproduced hereunder:-- "22. The principles of law denunciated hereinabove can be summarized as under:---.
(i) Appointments, Removals and Promotions.--- Appointment, removals and promotions must be made in accordance with the law and the rules made there-under; where no such law or rule exists and the matter has been left to discretion, such discretion must be exercised in a structured, transparent and reasonable manner and in the public interest.
(ii) Tenure, posting and transfer.--- When the ordinary tenure for a posting has been specified in the law or rules made thereunder, such tenure must be respected and cannot be varied, except for compelling reasons, which should be recorded in writing and are judicially reviewable.
(iii) Illegal Orders.--- Civil servants owe their first and foremost allegiance to the law and the Constitution. They are not bound to to(???) obey orders from superiors which are illegal or are not in accordance with accepted practices and rule-based norms: instead, in such situations, they must record their opinion and, if necessary, dissent.
(iv) OSD.--- Officers should not' be posted as OSD except for compelling reasons, which must be recorded in writing and are judicially reviewable. If at all an officer is to be posted as OSD, such posting should be for the minimum period possible and if there is a disciplinary inquiry going on against him, such inquiry must be completed at the earliest".
19. .The functionaries are not with prerogative or unfettered discretion to delay such type of matters by adopting the procedure beyond the rules and onward to rectify their mistakes by issuing supporting notifications and additional orders as they did in both the instant cases..
21. In Superintendent of Police Head Quarter Lahore and 2 others v. Muhammad Latif (PLD 1988 SC 387), the Hon'ble Supreme Court of Pakistan held as under: --- "that the Election Commission is a person or authority which exercises jurisdiction in the Province of East Pakistan in connection with the affairs of the Centre namely elections to the office of the President, National Assembly and the Provincial Assemblies and for holding a Referendum as provided for in the Constitution, as such; Commission is subject to the jurisdiction of the High Court notwithstanding that its main office and Secretariat are located in the Province of West Pakistan because the plain meaning of the words "a person performing in the Province functions in connection with the affairs of the Centre" exclude territorial limitation, such as that the person or authority to whom the High Court is empowered to issue writ must be amenable to its jurisdiction either by residence or location within those territories."
22. In Muhammad Idrees v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 5 others (1998 PLC (C.S.) 239), the petitioner of the case was an employee of the Government of Pakistan, in relation to his service an order passed by the Government at Islamabad, which was conveyed to him in Quetta, where he was posted, he filed a constitutional petition with a prayer:--- " It is prayed that this Honourable Court may graciously be pleased to issue appropriate direction in nature of writ of mandamus directing respondents to reconsider and finally decide petitioner's 'representation for antedation of his promotion.
' A preliminary objection was raised by the learned Deputy Attorney-General about the lack of territorial jurisdiction and the Division Bench of the Court, in the judgment authored by the learned Judge, (now the Honourable Chief Justice of Pakistan) held "As far as Federation is concerned, it represents to all the provinces, therefore, if an aggrieved' person residing in any of the provinces, where such order action has been communicated to him, he can invoke the jurisdiction of said respective High Court." Furthermore "Thus, it is concluded that objection raised in this behalf by the learned Deputy Attorney-General has no substance, which is accordingly overruled concluding thereby that this Court has territorial jurisdiction to entertain the Constitutional petition against the functionaries of the Federal Government because cause of action accrued to petitioner against the adverse orders determined to his service interest passed by a competent Authority during his posting at Quetta."
23. In Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (Private) Limited and another (2000 S.CMR 1703), it is held:--- "The learned Single Judge of the High Court in Chambers has elaborately dealt with this aspect of the matter in the judgment in writ petition and has held that the respondent No,1 having cause of action against Federal Government could bring the Constitutional petition either at Karachi or at Rawalpindi Bench, of Lahore High Court. The learned Single Judge rejected the objection of maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan are being controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only claimed against the petitioner but was also claimed against the respondent No,2, the Ministry of Commerce, Government of Pakistan at Islamabad as such."
24. The issue came up for discussion in LPG Association of Pakistan through Chairman v.
Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498), the learned Single Judge of the Lahore High Court after considering about all the judgments on the subject has ruled as under:---
(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in, any of the Provinces, shall still be deemed to function all over the country.
(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.
(C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.
' In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad, this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts.
(D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule .of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience."
25. Now the question is whether Lahore High Court Lahore has the jurisdiction to issue a writ against an order passed by a person performing in the affairs of Federation. The language of Article 199 (a)
(i) of the Constitution is clear. The Prime Minister of Pakistan is a representative of all federating units of Pakistan and is the chief executive of the Government and as such he is a person undoubtedly who is performing functions in the affairs of Federation, There is now question in this case whether the person who passed the order is functioning in Islamabad only and is not maintaining any his offices in other Provinces. The Prime Minister is deemed to be functioning in the entire Pakistan and as such there is no doubt in my mind that the impugned order can be assailed successfully before the Lahore High Court, Lahore.
26. The other argument of learned counsel for respondent, is that under Clause 4 of the Islamabad High Court Act, 2010, Islamabad High Court has the absolute jurisdiction in respect of Islamabad capital territory. The impugned order is passed at Islamabad and the Islamabad High Court is enjoying the jurisdiction; hence the jurisdiction of Lahore High Court is ousted. The perusal of section 4 of Islamabad High Court Act, 2010 will show that Islamabad High Court has the jurisdiction in respect to the Islamabad capital territory original, appellate, revisional and other jurisdiction as under the Constitution or the laws in force immediately before the commencement of the act.
Islamabad High Court is enjoying the jurisdiction in respect of said territory which was earlier enjoyed by the Lahore High Court. The words used in Section 4 are "as under the Constitution is exercisable in respect of the said territory by the Lahore High Court, Lahore" which shows that before promulgation of Islamabad High Court Act, 2010, the Lahore High Court was enjoying the jurisdiction on the Islamabad capital territory. The words used in this Section as "is exercisable in respect of the said territory of Lahore High Court" are clear in nature. The word has been used as "is" meaning thereby in spite of promulgation of Islamabad High Court Act, 2010, the Lahore High Court has the jurisdiction on Islamabad capital territory; meaning thereby the Lahore High Court Lahore and Islamabad High Court are enjoying concurrent jurisdiction on Islamabad capital territory.
27. Now the question is whether the impugned order was passed after providing opportunity of hearing to petitioner or not? The perusal of impugned order shows that petitioner's dismissal was affected from 17-3-2003, the petitioner has filed representation against the said order which is pending disposal before the competent authority under RSO, 2000. The question whether the plea bargain of petitioner with NAB can be treated as conviction or not, in the first instance has to be examined by the appellate authority under RSO, 2000. Admittedly the petitioner's representation has not been decided so far and as such in my humble opinion, the argument of learned counsel for petitioner to decide the issue whether plea-bargain amounts to conviction by this Court is pre - mature. The petitioner in the first instance has to agitate this ground before the appellate authority.
28. As far as the question of maintainability of petitioner during the pendency of appeal before the Hon'ble Supreme Court of Pakistan is concerned, the appeal is on different ground as the petitioner's appeal was dismissed by the Federal Service Tribunal on the ground of jurisdiction.
After the judgment of Masood Ahmed Bhatti (supra) and as per admission of respondent that the petitioner joined Telephone and Telegraph Department and admittedly at that time the employees of Telephone and Telegraph Department were governed under the statutory rules. This petition is maintainable on the fresh ground that the petitioner's services is governed under the statutory rules of Telephone and Telegraph Department.
29. In view of above, this petition is allowed and the respondent No,2 is directed to decide the petitioner's representation against his termination order within one month on receipt of certified copy of this order. Needless to mention that the respondent appellate authority will provide opportunity of hearing to petitioner in accordance with law.