' ROOH-UL-AMIN KHAN, J.--- Through the instant constitutional petition under Article 199 of the Constitution, 1973, petitioners seek issuance of the following writ :--- "Directing the respondents to re-instate the petitioners in service as Naib Qasid and Chowkidars with full back benefits by setting-aside the impugned Office Order No,314 dated 20-6-2013, whereby their appointments/recruitments have been cancelled."
2. Petitioners alleged that after recommendations of Departmental Selection Committee, they were appointed as Niab Qasid and Chowkidars, respectively in BPS-I, vide appointments orders dated 3- 5-2013, in the respondents department/Assistant Director Food Bannu Division Bannu, on contract basis, whereafter, they submitted their arrival reports, but all of a sudden, vide impugned order dated 20-6-2013, their appointments were cancelled by respondents without any rhyme and reason, which act of the respondents is unlawful, without lawful authority and against the principles of natural justice, hence, ineffective upon their rights.
3 Respondent No,2 filed Para-wise comments, wherein the appointments of the petitioners against the questioned posts have not been denied, however, it was asserted that the Departmental Selection Committee, constituted for appointments of the petitioners was not 'properly constituted as was lacking representative from Administrative Department, therefore, appointments of petitioners being ab initio void were cancelled.
4. Arguments heard and documents available on file perused.
5. It appears from Office -Orders/appointments Letters bearing Nos.223-28/DFC, 230-235/DFC and 237-42/DFC dated 30-5-2013, that petitioners Noor Zeb Khan, Zubair Khan and Raham Niaz, being nominees of Employment Exchange Commission, had been appointed as Niab Qasid and Chowkidars, respectively, on the recommendations of Departmental Selection Committee. They after medical examination, submitted their arrival reports. Consequently, their service books were structured. However, in the meantime, vide Office Order No,314/ADF/Misc.1 dated 20-6-2013, the Assistant Director Food Bannu Division Bannu, cancelled their appointments. Relevant portion of the above referred Office Order is reproduced as below:--- "Consequent upon the directions of worthy Secretary Food on the face of letter No,PDA/LG and RDD)
4/51/2013 dated 21-5-2013 and conveyed the same vide Food Directorate Peshawar No,4889- 93/ET-APT-89-2013 dated 31-5-2013, received on 19-6-2013, with wording/observations reproduced as below:--- "The CS has conveyed the orders of the CM designate that all sorts of recruitments in the deptt:/Office be put on hold for the time being."
' As the appointments/recruitments, have been made on 30-5-2013, on the recommendation of selection committee. While the directions received later on. As such keeping in view of the direction of Chief Minister, the appointment/ recruitments of the candidates as per detail given below are hereby cancelled with immediate effect". (The underline is ours for emphasis).
6. The above quoted office order was defended by the respondents before this Court through filing their Para-wise comments in the following words:-- "Though the appointment orders of petitioners namely Messrs Noor Zeb Khan son of Khurshid Khan, Zubair Khan son of Shamsher Khan and Raham Niaz son of Balqiaz Khan, as Naib Qasid and Chowkidars (BS-01) were issued vide Office Order No,223-38/DFC dated 30-5-2013, No,230-35/DFC dated 30-5-2013 and No,237-42/DFC dated 30-5-2013, respectively, but without the recommendation of appropriate Committee. As evident from Notification of Government of Khyber Pakhtunkhwa Food Department vide issued No,SOF (Food Deptt.) 1-35/552 dated 2-10-2012, the Selection Committee must have a representative of the Administrative Department but in the Selection in hand this codal formalities has not been fulfilled. As such the criteria laid down for the purpose, embodied flaw, and thereby any such action undertaken in such circumstances become void ab initio in the eyes of law.
' It is further stated that according to Rules/Procedure vacant posts position of Class-IV in District/Divisional Offices in initial quota is reported to the Provincial Head Quarter (Food Directorate) for provision of NOC from Provincial Surplus Pool due to closing of District Surplus Pool.
And after obtaining NOC, the Manager Employment Exchange in District Office is to be asked to provide list of suitable candidates for filling the subject vacant posts. On submission of the list by the Manager Employment Exchange a letter is issued to the candidates for test/interview as per laid down procedure".
7. Perusal of the above quoted cancellation order dated 20-6-2013, would divulge that it has been passed on the directives of Chief Minister through Chief Secretary, conveyed to the Appointing Authority by the Administrative Secretary of the Department. The order further reveals that the Chief Secretary of the Province has conveyed order of the Chief Executive/Chief Minister to all the Administrative Secretaries for holding in abeyance all the appointments/recruitments orders for the time being. But the appointing authority instead of complying with the directives of the Chief Secretary, straightaway, cancelled the appointments orders with immediate effect.
8. At the time of filing comments, the respondents taking somersault, introduced a new plea of defence, which runs totally contrary to the impugned order dated 20-6-2013. The relevant Paragraph of the comments, reproduced above, would indicate that appointments orders of the petitioners were rescinded by the appointing authority, as at the time of appointment, the Departmental Selection Committee had not properly been constituted. The reason advanced by the respondents in comments, for cancellation of appointments orders is unwarranted, flimsy and against the law, for the reason that Departmental Selection Committee had properly been constituted under the rules. Part-III of North-West Frontier Province (Now Khyber Pakhtunkhwa) Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, provides a mechanism for appointment of civil servant against a civil post. According to second proviso of Rule 10(2), appointment in BPS-I to IV, shall be made on the recommendations of Departmental Selection Committee through District Employment Exchange Commission. In the instant case, undisputedly, petitioners are the recommendees/nominees of the Employment Exchange Commission. The respondents have also not denied that the petitioners are the recommendees of Departmental Selection Committee, but the only stance taken by them is that the Departmental Selection Committee constituted for appointment, was lacking the representation of Administrative Department. In this respect, minutes of the meeting are worth perusal, which reveals that one of the representatives of Food Department from Head Office, Peshawar was a member of the said Committee and he has duly signed the minutes and recommendations of the aforesaid Committee.
9. We have further observed that as per minutes of the meeting, the Departmental Selection Committee, constituted for the appointments/ recruitments of the petitioners, was comprising of Mr. Iftikhar Hussain Qureshi Assistant Director Food, Food Directorate Peshawar (Member), Mr. Din Muhammad Gul District Food Controller, Bannu (Member) and Mr. Afsar Zaman Head Clerk DFC Office Bannu (Member). The appointing authority i.e, Mr. Muhammad Jehangir Khan Assistant Director Food. Bannu Division, Bannu; has presided the meeting as a Chairman, while the other three have acted as members of the Departmental Selection Committee. Learned A.A.-G failed to show any deficiency in constitution of the Departmental Selection Committee, thus, the plea taken in parawise comments, is not convincing and against the record. It is not the plea of the respondents department that the petitioners lacked qualification for the posts in question. The Departmental Selection Committee has duly recommended them for their recruitments. Thus, the respondents-department has appointed the petitioners on temporary basis in accordance with procedure and rules. The alleged violation of procedure and rules is after-thought and merely a pretext. Time and again it has been ruled by the apex Court that in case of any procedural violation, the authority cannot be allowed to take benefit of its lapses in order to terminate service of the petitioners A merely because it has itself committed irregularity in violating procedure governing such appointment. A like situation arose before the apex Court in case titled, "Secretary to Government of N. -W.F.P. Zakat/Social Welfare Department Peshawar v. Sadullah Khan" (1996 SCMR 8413) and the Hon'ble Supreme Court in concluding paragraph observed the following:--- "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 his services due to irregularity and violation of rule 10(2) ibid. The premise, to say that least, is utterly untenable. The case of the petitioners 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 had 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 or irregularity in re-instating the respondent."
' A similarly controversy arose in case titled, "Collector of Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303) and the apex Court while resolving the same hold the following:-- "Plea raised by the authorities was that the appointments of civil servants were made without observing prescribed procedure for appointment and they were no more required being ad hoc appointees. validity. Appointments of civil servants were made by competent authority. If prescribed procedure was not followed by the concerned authority, the civil servant could not be blamed for what was to be performed and done by the competent authority."
' Similar view has been reiterated by the apex Court in case titled, "Federation of Pakistan through Secretary Establishment Division, Islamabad and another v. Gohar Riaz" (2004 SCMR 1662), which is reproduced as under:-- "Contention of employer department that initial appointment of civil servant was made in violation of rules by asserting political pressure was without any substance as department had not been able to establish on record that the employee lacked requisite qualification and was not appointed by the competent authority. Employee could not be punished for any act or omission of the department. Department could not be allowed to take benefit of its lapses in order to terminate the service of employee merely because department had itself committed irregularity by violating the procedure governing the appointment."
' In case titled, "Muhammad Akhtar Sherani and others v. Punjab Text Book Board and others (2004 SCMR 1077), the apex Court hold that petty employees like Chowkidar, Naib Qasid and Junior Clerks etc. could not be penalized for wrongdoing of the appointing authority. Reliance may also be placed on case titled, "Managing Director SSGC Ltd. v. Ghulam Abbas" (PLD 2003 SC 724).
' In case titled, "Ghazanfar Abbas and 2 others v. District Education Officer (Colleges) Sialkot and 2 others 2011 PLC (C.S.) 331, while facing identical controversy by the worthy Lahore High Court observed as under:--- "Petitioners were appointed by competent authority on the recommendations of Departmental Selection Committee after performing all formalities. Petitioners started performing their duties and accordingly the department had been paying the monthly salaries and other benefits to the petitioners. Service of the petitioners were terminated simply on the ground that some irregularities were committed by the department during process of appointment of the petitioners. Ground on basis of which the petitioner' services were terminated, was misconceived, because the department could not punish the petitioner for the lapses caused by it; and appointing authority was responsible to face the consequences of its lapses. If appointment of an employee was made illegal same could not be cancelled and instead of taking action against the employee; action must have been taken against the appointing authority for committing a misconduct by making illegal appointments. Petitioners, who otherwise were eligible, could not be penalized for the act of department. Constitutional petition was allowed."
10. Besides, the procedural wrong committed by the respondents department is not detrimental to the rights of any other private individual. Moreso, the impugned order vide which the appointments of the petitioners have been cancelled clearly manifest that it was not for cancellation of the appointments, rather recruitments in the respondents department/Office was directed to be put on hold for the time being, on the direction of Chief Minister. Thus, there was no occasion for the respondents to rescind the appointments orders of the petitioners.
11. For what has been discussed above and deriving wisdom from the judgments of the apex Court on the subject, we are of the firm view that the services of the petitioners have wrongly been terminated on the ground of some irregularities committed by the department/respondents during process of the appointment for which the respondents/department cannot punish the petitioners. Resultantly, we admit and allow the instant writ petition, set aside the impugned order dated 20-6-2013 and issue a writ to the respondents department to re-instate the petitioners on their service from the date of their appointments, however, the petitioners shall not be entitled to any arrears and back-benefits for the period of their service, which shall be treated as leave without pay.