' ROOH-UL-AMIN KHAN, J.--- Our this single judgment shall dispose of the instant Writ Petition Jawad Ali and 161 others, Writ Petition No,557 Fayaz Ali and 179 others as well as Writ Petition No,632, Waseem Akram and five others, filed against the Superintendent Head Quarter (Prison) and others, as all the writ petitions have been filed against the order dated 16.2.2015, whereby the appointment orders of the petitioners as Warder (BPS-5) issued vide order dated 22.1.2015 have been cancelled on the desire of so called "Competent Authority".
2. Brief but relevant facts of the case, as per averments of the writ petitions are that respondent No,1, invited applications for appointment, against 120 posts of Jail Warder and constable (BPS-5) from eligible candidates, through advertisement No, INF (P-721) dated 22.2.2014 published in the daily "Mashriq" and daily "Aaj". Subsequently a corrigendum was published in the above said dailies on 14.4.2014, wherein the number of posts was increased from 120 to 800 as well the last date for submission of applications was extended up to 30.4.2014. In pursuance of the advertisement, the petitioners being qualified and having the prescribed age limit submitted applications for employment against the said posts. About 21000 candidates were in competition for 800 advertised posts. The petitioners, amongst others, appeared in the written examination on date and places specified by the authority i,e,, at central jails of their respective district/agency. On completion of the first phase of written examination, the successful candidates were called for appearance before the selection committee for viva voce/interview and the qualified applicants/candidates were subjected to physical test and examination, thus after detail scrutiny and fulfilling the requisite codal formalities, the petitioners were offered appointment vide order dated 22.1.2015. The petitioners got through the medical examination and submitted their charge report, thus, they impliedly accepted the appointment, consequently they were posted on their respective places of duties, however, after 19/20 days of their duties, all of a sudden misfortune befell upon them, when respondent No,1 issued the impugned order dated 16.2.2015 whereby the appointment order of all the newly temporary appointed warders in BPS-5 was cancelled as desired by the "Competent Authority". Hence this writ petition with the following prayer: "1. A writ of certiorari may be issued to declare the impugned order of respondent No,1 dated 16.2.2015 as illegal, unlawful and thus, ineffective upon the rights of petitioners.
2.To direct the respondents to withdraw the impugned order 16.2.2015 and to allow the petitioners to perform their duties as Warders as per their initial appointment orders dated 22.1.2015."
3.Initially comments of respondents were called for which were submitted accordingly with a stance that it had cancelled the appointments of the employees as the provincial government intended to make the recruitments through "National Testing System" (NTS) as a policy matter, however the petitioners are at liberty to compete as and when the process is initiated through NTS.
The fundamental right of petitioners is not violated; therefore, the writ petition is not competent.
4.Learned counsel for petitioners vehemently argued that the petitioners have been inducted into service, after fulfilling all the legal and codal formalities. They have assumed the charge of their duties at their respective places of posting. The appointment orders have been acted upon, therefore, principle of locus potentiate is attracted. The impugned notification has been issued in the result of pressure brought by a group of ruling party for accommodating their blue eyed. The respondents or any other else have failed to pinpoint a single irregularity or illegality in the appointment process of petitioners, thus the cancellation order is untenable and liable to be set aside.
5Conversely, the learned A.A.G argued that the impugned order has been cancelled by the competent authority because the provincial government is constrained to make recruitment through the National Testing System, as a matter of policy. In lukewarm manner he agitated that the quota of certain district has been violated and the advisor to the Chief Minister for prison, have prevailed upon the appointing authority by inducting a large number of employees from his local area. He also argued that the jurisdiction of this court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan as well, none of the petitioners has approached the competent authority through departmental appeal.
6. The respondent No,1 personally in attendance, being appointing authority, was invited to the rostrum to apprise the Court about process of selection and cancellation of appointment order, who, with all his fairness, stated at the bar that all the appointments have been made in a transparent manner, after fulfilling all the legal requisite formalities, however on the directive of respondent No,3. i,e, Secretary Home and Tribal Affairs, routed through the Inspector General (Prisons) he being subordinate was under compulsion to issue the impugned notification. He gallantly stated that "he has just obeyed the order".
7. Having heard the learned counsel for the parties, perusal of the record would reveal that the petitioners have submitted applications for appointment against the vacant posts of Jail Warder in consequences of advertisement issued in local dailies. After qualifying written examination, passing physical fitness test and interview before the duly constituted selection committee, they were appointed on merit basis. Being pre-requisite for taking charge, they got medically examined and were posted at respective places of their duties. In addition, they were issued computerized service card through the Prison Department. After performing duties for about 19/20 days, were shown the exit door with one stroke of the pen only on the desire of an unknown competent authority. Undisputedly the competent authority for appointment of jail warder is Superintendent, HQ (Prison) who in the presence of the Additional Advocate General backed and defended the appointment order on the rationality that it have been issued following and realizing all the legal and codal formalities. He reiterated that the impugned cancellation order has been issued on the directive of Secretary Home and Tribal Affairs, routed through the Inspector General (Prisons) and he being subordinate was under obligation to issue the impugned notification. Comprehending the state of affairs, one can easily perceive that how the bureaucracy of this province is playing with the law, and destitute of the province on an eye wink of a political stalwart or boss, despite the facts that on more than one occasion the august Supreme Court of Pakistan was pleased to emphasis and accentuate that the Functionaries, exercising statutory power, are bound to discharge their functions strictly in accordance with law, otherwise the action contrary to law would not be sustainable and such Authority shall expose itself for disciplinary action. In the case in hand, it is an undeniable and irrefutable fact which has also repatriated by the appointing authority, that the appointment of the newly appointed warder have been cancelled and the impugned order has been issued as desired by the competent authority: Admittedly the competent authority in the instant case is the appointing authority, which is defending the entire selection process as well appointment order. Here, the word "competent authority" has been applied; probably to blot out the actual man behind the gun who being influenced by the law makers of the province was instrumental for removal of employees appointed after due process of law. It emerges from the record of the case that the appointments of the petitioners have been cancelled in complete negation of the rules and law regulating the subject which is not only an illegality or irregularity, but a deviation and disobedience of command of the law and constitution, by the appointing authority. We A have noted with great concern that the appointing authority was in the wrong in having blindly obeyed an illegal command, merely to accomplish the illegal desire of an unknown boss in the apparel of competent authority, which is not an obedience of high ups, rather a punishable act like a crime committed by an accused.
8.It is divulged from the record before us that in the month of April, 2014, Mr. Salih Muhammad, Member Provincial Assembly, Khyber Pakhtunkhwa moved an assembly question on the floor of the house for knowing the intention of the provincial government regarding the transparency in process of appointment of warders in the Prison department of Khyber Pakhtunkhwa. In this regard, the viewpoint of the Inspector General of Khyber Pakhtunkhwa was solicited for who opined that being the law enforcement agency the candidates appointed as warder in the Prison Department are required to go through physical and mental screening tea. Besides, the written examination and interview of such candidates are also to be conducted. He expressed his no objection at ETEA test, however expressed that physical and medical test of suitable candidate would not be possible through ETEA test. In response of the query, Secretary Home and Tribal Affairs Department (the respondent No,1) was of the view that in order to ensure transparency and merit and to avoid public complaint and to enhance the image of the present Government recruitment of the warder in prison department is required to be conducted through ETEA test.
9.Consequently, a detailed summary was submitted to the Chief Minister, Khyber Pakhtunkhwa for order, wherein the Chief Secretary, Khyber PakhtunIchwa endorsed the following note:- "Recruitment/selection through ETEA/NTA tests is now the norm for the KPK government which has been appreciated publicly. However, in instant case, when the provincial government is under immense pressure for beefing up its prison security on a fast track, proposal contained in para- 29/n may kindly be considered favourably for approval." (Underline is added for emphasis)
' In view of the endorsement Note of chief secretary, the proposal contained in para-29 read with para-26 of the Summary was forwarded for approval of the Chief Minister. In this respect, para-24
(a) of the summery worth perusal which read as under:-- "To ensure transparency and merit in the recruitment process, at this belated stage, the only practical solution seems to be to make the recruitment by committee duly notified, with extra vigilance/caution. "
' Similarly, para-25 of the summary speaks that to counter such cases; it is proposed that written test papers may be preserved for at least a period of three months from the date of issuance of appointment orders. In this way, para-29 was approved by the Chief Minister. The above exercise would make it clear than crystal that before starting appointment process, the prcvincial government has considered pros and cons of the mode of selection of the appointees and has ultimately preferred the way for selection of written test and interview basis. After threadbare discussion, analyzing viewpoints of the proficient, high level official of the concern department and approval of the summary by the Chief Executive of the province and successful completion of the entire process of recruitment, at a belated stage, raising and agitating the question of ETEA or NTS test is a sheer pretext for the accomplishment of the illegal desire of an unknown boss. It is settled law that every person discharging the functions in relation to the rights of people is bound to do justice, act fairly, justly and in accordance with law and if a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse his official authority, he should be made answerable to law and should be proceeded against for an appropriate action by his superiors, and in such an eventuality a change in the socio-economic system would be possible. The tendency of bending for the accomplishment of desire and whims of political allied would be against the norms of good governance and transparency in public service and must be a hurdle in uplifting the general well being of the citizenry, which is definitely not the Moto of the Provincial Government. We have observed that the tenets of public service, which include honesty, integrity, accountability, transparency, impartiality, discipline, expertise and competence, among others, have not only been violated by public officials but also eroded by political office holders. Due to opacity and obscurity in appointment of the civil servant by nepotism and favoritism the service came to be characterized by lack of professionalism, excessive partisanship, endemic corruption, slowness and inefficiency, and crass selfishness and greed, whereby inspite of commendable efforts by a few to turn the tide in the right direction, the prevailing tendency is still gloomily far below what is expected of a modem nation on a fast track to development.
10. The principal submission raised by counsel for the petitioners is based on violation of the principle of natural justice in ordering cancellation of the appointments. Elaborating his submission, he contended that the petitioners were issued appointment letters, they having joined their respective posts and working, their appointments could not have been cancelled without giving them notice and opportunity of hearing. Any order affecting the rights of a person has to be made in consonance with the principles of natural justice. An order taking away the rights of a person without complying with the principle of natural justice has been held to be illegal. The principle of natural justice cannot be limited in any straitjacket formula. Necessity of hearing a person while taking an action depends on the facts of each case. With regard to cancellation of entire selection, there may be various reasons and grounds, for example, for cancelling a selection process which does not culminate into appointment giving rights to a person, it is well settled, that individual notice to the candidates selected is not normally necessary, however, when after selection an appointment is issued, the person acquires right to hold the post and for cancelling such appointment giving of notice is a normal rule. Cancellation of appointment after selection also can be of different magnitude and nature. When a cancellation of the appointment of an individual appointee is made on certain grounds concerning the said individual, opportunity has to be afforded to the person whose appointment is sought to be cancelled.
11. As observed in the preceding para-2, all the petitioners have been posted at their respective places of duties, in pursuance of the appointment order, thus decisive step has been taken in the case. No doubt, power of rescinding is available to the government until the decisive step is taken.
The government or the relevant authority is not vested with the authority to withdraw or rescind an order, if the same has taken legal effect and created certain legal rights in favour of an individual.
The cases of petitioners are of the nature that the order of appointment passed by the government could neither be revoked nor withdrawn under the principle of locus poenitentiae. The honourable Supreme Court of Pakistan in case titled "Chief Secretary, Government of the Punjab and others v.
Malik Asif Hayat, (2011 SCM R 1220), while dilating upon the principle of locus poenitentiae was please to rule that there can hardly be any dispute with the rule that apart from the provision of section 21 of the General Clauses Act, locus poenitentiae, i,e, tbe power of rescinding till a decisive step is taken, is available to the government or the relevant authorities. Infact, the exercise of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights. It is also manifest from the record that 796 employees have been shown the exit door by one stroke of the pen and the individual appointment order have been cancelled by a single order only for the reason that the competent authority desires so. In the case in hand, it is an undeniable and irrefutable fact which even confirmed by the appointment authority that the respondent No,1, routed its desire through the respondent No,2, for cancellation of 796 appointment orders, despite the fact that all the appointees have applied for the post in pursuance of an advertisement and was declared successful in the written examination, physical check up and interview.
12. The appointment to a civil service of the province or to a civil post in confection with the affair of the province, made in the prescribed manner by the competent authority fall under Chapter-II (Terms and Conditions of Service of Civil Servants) but the Civil Servants Act equally provide a mechanism for confirmation, seniority, promotion, posting and transfer, termination of service and retirement from service etc. Likewise, the Khyber Pakhtunkhwa Government Servants (Efficiency and Discipline) Rules, 2011 provides different kind of penalties including removal and dismissal from service. In the case in hand, the respondent department has cancelled the appointment order of 796 employees in infancy, by bypassing all the statutes on the service law. Obviously, the cancellation order of the employees passed by the authority is not in conformity with the terms of statute. Law does not authorize any authority to cancel an appointment order and remove such employees from service without any reason. In such an eventuality, Article 199(3) of the Constitution does not provide blanket cover to the authorities and are subject to judicial review if the action on part of the authorities is found corum non judice, without jurisdiction or mala fide. In the case in hand, the authorities could not overlook the provision of Khyber Pakhtunkhwa Civil Servants Act, 1973, Appointment Promotion and Transfer Rules, 1989 and Khyber PakhtunIchwa Government Servants (Efficiency and Discipline) Rules, 2011. The catchphrase of cancellation of appointment to accomplish the desire of the competent authority is alien to the service law. The question of jurisdiction of the High Court in such like matters, in view of the bar contained in Article 199(3) of the Constitution has been dealt with by the august Supreme Court of Pakistan in case titled "Federation of Pakistan through Secretary Defence and others v. Abdul Basit" (2012 SCMR 1299), wherein it has been held that notwithstanding the bar contained in Article 199(3) of the Constitution, where any action has been found to be without jurisdiction or comm non judice or mala fide, extraordinary jurisdiction of the High Court under Article 199 could competently be invoked by an aggrieved person. It was further held that the non obstante clause has to be strictly construed. If an action of the authority is in colorful exercise of power or is tainted with malice, non obstante clause will not come in the way of High Court to entertain such a petition. The august Supreme Court of Pakistan in a landmark judgment rendered in case titled "Doctor Akhtar Hussain Khan and others v. Federation of Pakistan and others" (201.2 SCMR 455) was pleased to rule that even the existence of an alternate remedy cannot prevent the court from exercising its power of judicial review if the said alternate remedy is neither efficacious nor expeditious. If an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be H invoked and if a statutory functionary acts mala fide or in a partial unjust and oppressive manner the court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party.
13.It is not the case of the respondent department that the petitioners were not eligible for the appointment or any illegality or irregularity had been committed in the appointment process rather they are intended to make transparency in the appointment matters through NTS.
Undisputedly, the appointment of the petitioners were made by the competent authority by following the prescribed procedure. The petitioners were having no nexus with the mode of selection process, I therefore, could not be blamed or punished for the laxities of the government.
The august Supreme Court of Pakistan has held in case titled "Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others", (2004 SCM R 303) that for the irregularities committed by the department itself qua appointment of a candidate, the appointee cannot be condemned subsequently. The same view was reitereated by the august Supreme Court of Pakistan in case titled "District Coordination Officer, District Dir Lower and others v. Rozi Khan and others" (2009 SCM R 663). .Amazingly, for about 9 months the appointment process remained under discussion in the corridor of government and finally it was decided by the Chief Minister of the province that the appointment shall be made after conducting written examination, physical fitness test and interview, but after completion of the selection process and appointment of petitioners the respondents awaken from the deep slumber and suddenly took a summersault with a contrary stance of making the appointment on the basis of examination through NTS.
14.In wake of the above, we are of the firm view that the impugned order dated 16.2.2015 passed by the respondent No,3, whereby the appointment orders dated 22.1.2015 were cancelled on the direction of respondent No,1 is without lawful authority, without jurisdiction and of no legal effect.
Resultantly, all the three writ petitions are admitted and allowed and the impugned order is set aside, however, the parties are left to bear their own costs.