SHAH KHAWAR, J.--- Through this single judgment, we intend to dispose of instant Intra Court- Appeal and other 42 connected Intra Court Appeals bearing Nos.23/2014, 15/2014, 9/2014, 7/2014, 45/2014, 21/2014,57/2014,44/2014,33/2014,58/2014,36/2014,12/2014, 16/2014,11/2014,39/2014,41/2014,35/2014,74/2014,8/2014, 28/2014,6/2014,10/2014,37/2014,14/2014,22/2014,65/2014, 46/2014,13/2014,76/2014,38/2014,40/2014,5/2014,18/2014, 25/2014,29/2014,34/2014,20/2014,43/2014,42/2014,47/2014, 27/2014,24/2014,arisingfrom the consolidated judgment dated 04.12.2013 announced on 20.12.2013 passed by the learned Single Judge in chamber.
2. Precisely, stated facts giving rise to the filing of instant ICA are that on 03.11.2008 an advertisement was published in daily "Nawaiwaqat" to the effect that vacancies in the MEPCO jurisdiction were available in five categories which are as follows.
' Commercial Assistant. Account Assistant.
' SSO-II (Sub Station Operator) iv. ASSA (Assistant Sub Station Attendant) v. ALM (Assistant Line Man).
3. Pursuant to the said advertisement, total 55209 candidates applied for the said posts out of which 1453 were appointed on 21.12.2009. The said candidates were appointed on the basis of walk through interview. Meanwhile, W.P.No.701/2010 titled "Safdar Hussain v. WAPDA etc", W.P. No.703/2010 titled "Saima Jabbar v. WAPDA etc." and W.P.No.705/2010 titled "Khurram Shahzad v. WAPDA etc." were filed before this Court at Bahawalpur Bench wherein the petitioners in the said writ petitions challenged the whole process of recruitment. Vide judgment dated 17.06.2010, passed by the learned Single Judge in chamber, the writ petitions were allowed in the following terms:- "(I) All appointments made among st the candidates from outside the MEPCO territorial jurisdiction, pursuant to the advertisement of the respondents, subject matter of these writ petitions, are declared to be mala fide and ultra vires of the Constitution of the Islamic Republic of Pakistan, 1973 void ab-initio and are set-aside accordingly;
(II) The persons appointed against respective posts having domicile of within the MEPCO territorial jurisdiction shall provisionally continue as such. These appointments are being provisionally protected on two grounds, as:-
(a) These appointments otherwise, prima-facie fulfill the basic criteria of being the residents of the same MEPCO territorial jurisdiction, as advised; and
(b) By their immediate expulsion from service, there may occur unnecessary vacuum in MEPCO may even result in adding to the miseries of general public in these days of scorching heat, searching for electricity.
(III) The respondents authorities are directed to shortlist the applications received from the candidates from within the MEPCO territory by making a transparent and fair criteria and then arrange for written test where after, at least five candidate shall be called for interview of each post. In case of less number of candidates apply/qualify/pass for any post, this condition shall not apply;
(IV) The interview marks, as discussed above, shall not be more than 25%; and
(V) For women quota as notified by the Federal Government shall strictly be observed considering the suitability of such posts keeping in view the dignity of the women, but this classification should not be based on arbitrariness.
4. Feeling aggrieved, the appellants-MEPCO filed ICA No.168/2010 against the judgment dated 17.06.2010, passed by learned Single Judge-in-chamber of this Court at Bahawalpur Bench. Said ICA was adjudicated by a learned Division Bench of this Court at Lahore. Vide order dated 12.03.2013, said ICA was dismissed as withdrawn. It is worth mentioning here that during the tendency of said ICA, civil miscellaneous were moved by some of the employees of MEPCO for imp leading them as appellants which were allowed subject to question of maintainability and limitation. Said applicants were imp leaded as appellants Nos.3 to 17 and while disposing of ICA No.168/2010 the issue of implemented of applicants was kept alive and their learned counsel were called upon to address arguments in the light of provisions of section 22 of the Limitation Act about the maintainability of ICA on their behalf after their implemented. The said ICA to the extent of appellants Nos.3 to 17 was relisted for 03.04.2013 and was finally decided by learned Division Bench on 29.05.2014. The operative part of said judgment is reproduced herein under:- "6. Though we have heard the learned counsel for appellants Nos.3 to 17 for the last three dates of hearing at full length on legal as well as factual aspects of the case but we believe that mentioning of all these facts and arguments will be the wastage of time. The matter can be decided only on the basis of simple question of law and the appeal may not be proceed-able on technical grounds but as we have heard the learned counsel for appellants Nos.3 to 17 at full length, therefore, we are of the view that same be decided on merits. The appellants Nos.3 to 17 will be mentioned as present appellants.
7. The minute scrutiny of case of present appellants is that they are aggrieved by the order dated 21.06.2011 passed by this Court whereby Para 32 (ii) of impugned judgment dated 17.06.2010 has been suspended. This fact is clearly visible from Para 2 of C.M. No.2062 of 2013 filed by the present appellants. It is not denied that the recruitment was made on contract basis for a period of one year, that has expired long ago and further when the appointment of present appellants was protected till the recruitment of new persons in accordance with law, present appellants were not aggrieved by the judgment passed by the learned single Judge. The order of learned single judge was suspended by the learned Division Bench of this Court vide order dated 21.06.2011. The order of learned single Judge giving protection to the present appellants was not for indefinite period and when new appointments were made by the competent authority, no relief can be granted to the present appellants. In this view of the matter, further going into the interpretation of all the legal questions raised before this Court is not required in this case, as the same will be an exercise of academic nature.
8. So far as the argument of learned counsel for the present appellants that original appellants Nos.1 and 2 were not entitled to withdraw the appeal without permission of appellants Nos.3 to 17 is concerned, in the light of Order XXIII(1)(4) of the C.P.C. We do not agree with the arguments of learned counsel for appellants Nos.3 to 17, as it is not a case where all the appellants were joint plaintiffs or defendants in the trial court and further that case of appellants Nos.1 and 2 and appellants Nos.3 to 17 is not on the same footings, therefore, withdrawal of appeal by appellants Nos.1 and 2 was legal and no permission was required in case in hand by appellants Nos.1 and 2 from appellant Nos.3 to 17 before the withdrawal of appeal. Originally the appeal was filed by appellants Nos.1 and 2 and subsequently appellants Nos.3 to 17 filed an application for imp leading them as respondents in the appeal but on the statement of learned counsel for the parties on 25.09.2012 they were allowed to be imp leaded as co-appellants.
9. In the above circumstances, the appointment of appellants which was declared illegal was for contract employment for a period of one year starting from December, 2009 and in Para 32 (ii) of the judgment of learned Single Judge their appointment was kept intact till the fresh recruitment and admittedly fresh recruitment has been completed as per statement of learned counsel for appellants Nos.1 and 2. The case of present appellants that they were actually aggrieved by the order of suspension of Para 32 (ii) passed by this Court dated 21.06.2011 in this appeal which shows that they are not aggrieved by the order challenged in this appeal passed by the learned Single Judge of this Court, therefore, the appeal is not maintainable. It is hereby dismissed. In this view of the matter, all the pending civil miscellaneous applications also stand dispose of. There is no need to decide each application separately."
5. After the implementation of judgment passed by learned Single Judge-in-Chamber dated 17.06.2010 in W.Ps.Nos.710, 703 and 705 of 2010 which was endorsed vide order dated 12.03.2013 passed by learned Division Bench of this Court at Principal Seat at Lahore, the employees of MEPCO were required to appear in written test. Vide notification dated 25.06.2012, successful employees/candidates were intimated that they have passed their written test and were called for interview for different dates. According to the appellants/MEPCO as many as 623 employees of MEPCO could not pass the interview and vide office order dated 05.07.2013 their services were terminated and were advised to relieve their duties within two days. Said office order dated 05.07.2013 was challenged by the aggrieved private employees through filing of writ petitions and the same were admitted for regular hearing by a learned Single Judge-in-Chamber who was pleased to pass interim order for suspension of order of termination dated 05.07.2013. Finally vide consolidated judgment dated 04.12.2013 announced on 20.12.2013, said writ petitions were disposed of in the following terms:- "For what has been discussed above, all the writ petitions are disposed of in the terms that impugned office orders are set-aside and the authorities are directed to proceed further in terms of Section 3(e) of Removal from Service (Special Powers) Ordinance 2000, after issuing show- cause notice to the petitioners."
6. In the instant Intra Court appeal filed by the appellants-MEPCO, the judgment dated 04.12.2013 announced on 20.12.2013 passed by learned Single Judge-in-Chamber has been challenged inter alia on the grounds that in compliance of directions issued by learned Single Judgein-Chamber as well as learned Division Bench of this Court, fresh appointments were made on merits by the appellants-MEPCO and services of employees having not passed the test and interview were terminated; that learned Single Judge-in-Chamber vide impugned judgment dated 04.12.2013, while setting aside the general order of termination dated 05.07.2013 directed the appellants- MEPCO to proceed further in terms of section 3(e) of Removal From Service (Special Powers)
Ordinance, 2000 after issuance of show cause notices to the petitioners; that RSO 2000 already stood repealed w.e.f.
06.03.2010 so notice under the said ordinance could not be issued; that learned single Judge-in- Chamber has passed the conflicting judgments as on the one hand, in W.Ps.Nos.701, 703 and 705 of 2010 whole of the recruitment process has been set aside and directed the department to initiate fresh recruitment as per guidelines given in the judgment dated 17.06.2010 reported in K.L.R. 2011 Civil Cases 100 "Safdar Hussain and another v. Water and Power Development Authority (WAPDA) through its Chairman WAPDA WAPDA House Lahore and 16 others" so the appellant as per direction passed by this Court in ICA No.168/2010, completed fresh recruitment process issued the impugned termination order dated 05.07.2013; that respondents/appellants/employees participated in the fresh recruitment process and were duly considered; that they were given five additional marks for their experience but they failed to compete on merits. In the instant ICA, whole judgment dated 04.12.2013 announced on 20.12.2013 passed by learned Single Judge-inChamber has been prayed to be set aside.
7. Conversely, in the connected Intra Court Appeal, appellants/ employees have challenged the judgment dated 04.12.2013 announced on 20.12.2013 inter alia on the grounds that the appellants have been working in the department since 20.01.2010 and a vested right has been accrued in their favour but were ousted illegally on 05.07.2013, without adopting due process of law which is in violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973; that neither show-cause notice was issued nor the appellants were personally heard and termed the impugned order in violation of principles of natural justice; that the appellants are domiciled residents of territorial jurisdiction of MEPCO; that the question whether appellants' appointment were made outside the MEPCO territorial jurisdiction, remained undetermined; that the impugned order was passed without due process, in violation of Articles 4, 8, 9 and 14 of the Constitution of the Islamic Republic of Pakistan, 1973; that the appellants had been appointed after due scrutiny and had started their professional life when through the impugned order of MEPCO, their professional carrier were brought to an end; that the appellants could not have been deprived without assigning any fault in the prescribed qualification, hence, order was passed in violation of Section 24-A of General Clauses Act, 1897; that lapses and mistakes committed by the authority/respondents in carrying out recruitment process could not have been stretched to the detriment of the vested rights accrued in their favour; that the impugned findings/observations that appellants' appointment were made on extraneous grounds in violation of law and rules, are not sustainable in the eyes of law; that observations made in the impugned judgment (in Para Nos.
7, 8 , 10 and 11) with reference to the order dated 17.06.2010 at Bahawalpur are neither justified nor sustainable in the eyes of law; that the observations made in Para No.7 of the impugned judgment that appellants are hit by the principle of estoppel are without any factual and legal basis; that in Para No.8 of the impugned judgment inference drawn by the learned Single Judge-in-Chamber to the effect that appellants were appointed on extraneous ground in violation of law and relevant rules is also illegal, arbitrary and without any solid proof on the record; that general findings of the learned Single Judge-in-Chamber in Para No.10 to the effect that "the beneficiaries i.e. The persons who were appointed could not be absolved of their responsibility as they were party to illegal actions" are also based on surmises and conjectures; that there was/is no proof on the record that how appellant's can be said that they were party to illegal actions; that the learned Single Judge- in-Chamber has fallen in error of law while not allowing the relief of reinstatement with full back benefits to the appellants.
8. Heard.
9. Contention of the appellants/employees that due to the afflux of time there accrued a vested right in their favour by way of falling within the definition of workman in accordance with the provision of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and they are liable to be treated in accordance with the said ordinance, has no force. There is no cavil with the proposition that during their tenure of employment, RSO, 2000 was omitted and appellants/MEPCO) vide order dated 01.04.2011 notified that the employees working in BS 1 to 16 will be subject to the provisions of Standing Order, 1968 but same was not applicable to the Appellants/ Employees. It must be borne in mind that vide impugned judgment dated 17.06.2010 passed by learned Single Judge-in-Chamber at Bahawalpur, reported in K.L.R. 2011 Civil Cases 100 all appointments made among st the candidates from outside the territorial jurisdiction were declared to be mala fide and ultra vires of the constitution and were declared void ab initio and the employees having domicile within the MEPCO territorial jurisdiction were provisionally allowed to continue and in the meanwhile, the MEPCO authorities were directed to short list the applications received from candidates within the MEPCO territory by making a transparent and fair criteria of written test and interview.
10. The said exercise as ordered by the learned Single Judge-in Chamber was complied with by the MEPCO. The appellants/employees were subjected to written test and interview which they could not succeed and impugned office order dated 05.07.2013 was passed whereby their services were terminated. The appellants-employees cannot claim their status as of "workman" as provided in "West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968" as their employment was protected on provisional basis and their continuation in service was subject to the passing of test and interview which they could not pass. This aspect of the matter has also been endorsed by final judgment dated 29.05.2014 rendered by learned Division Bench of this Court at Lahore in ICA No.168/2010 filed by appellants "Nos.3 to 17 for their implemented as respondents in main ICA. Relevant portion of the said judgment has already been reproduced above.
11. We are of the considered view that impugned judgment dated 04.12.2013 announced on 20.12.2013 is based upon earlier judgment passed by learned single judge-in-Chamber dated 17.06.2010 and direction passed by learned Division Bench, at Lahore in ICA No.168/2010. So far as portion of the said judgment which has been prayed to be set-aside to the extent that office order dated 05.07.2013 pertaining to general termination of employees of M
12. The case-laws relied upon by the appellant/employees are distinguishable and are not applicable to the case of present appellants/ employees.
13. By this way of the matter, we have reached a conclusion that the learned Single Judge in chamber haEPCO has been set-aside and authorities are directed to proceed further in accordance with section 3(e) of the Removal from Service (Special Powers) Ordinance, 2000 after issuing show cause notice to petitioners is concerned it is held that since provisions of RSO, 2000 were already repealed so same could not have been pressed into service.s fallen in error by setting aside impugned order of general termination dated 05.07.2013 passed by the Appellant/MEPCO' with a direction to the authorities (MEPCO) to proceed further in accordance with Section 3(c) of the RSO, 2000 after issuing show cause notices to the petitioners.
14. Reluctantly, the Intra Court Appeal filed by the Appellant/ MEPCO is allowed and the impugned judgment dated 04.12.2013 announced on 20.12.2013 passed by the learned Single Judge is hereby set-aside. It is declared that the general termination order passed by the appellant-MEPCO dated 05.07.2013 stands revived and same hold the field. Further that the Intra Court Appeals filed by the appellants/ employees are allowed only to the extent that observations made by learned Single Judge-in-Chamber in Paras Nos. 8, 10 and 11 of the impugned judgment are hereby expunged and shall have no bearing on the appellants/employees.