' YAR MUHAMMAD, J.--- This writ petition under Article 71(2) of the Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 has been preferred seeking writ of "mandamus" to get the order dated 16-06-2014 of the Chief Minister Secretariat Government of GilgitBaltistan be complied with by the respondents.
1. Shortly, the facts forming background of this petition are that the petitioners are bona fide residents of Gilgit-Baltistan who were appointed in the Excise and. Taxation Department Gilgit- Baltistan firstly on contingent basis and subsequently within one year i.e, during 2012 and 2013 they were adjusted against the clear vacant posts on permanent footing. Since there were allegations that the disputed appointments have been made in gross violation of the relevant rules and procedure therefore, the Chief Minister Gilgit-Baltistan while taking notice of the allegations constituted a team which was named "Chief Minister's inspection team", to probe into the matter and to find out facts related to the disputed appointments. Consequently, the committee investigated the matter and submitted a report containing findings and recommendations. On the basis of the findings and recommendations so returned by the committee, the respondent No, 2 issued notices to the petitioners with the allegation that the petitioner in collusion with the officers/ officials of the Excise and Taxation Department, Gilgit-Baltistan have drawn salaries fraudulently from concern District Accounts Officers on the strength of void ab-initio appointment orders and that the posts against which the petitioners appointed were temporary for being created up to 31st May, 2013 and that neither continuation of the posts have been sought nor the posts have been incorporated in the NIS for the financial year 2013-14, thus, the pay drawn by the petitioners from 31st May 2013 and onward being over and above of the permissible period, is recoverable from them and directed the petitioner to show cause as to why their appointment orders should not be cancelled and they should not be terminated from their services. The show-cause notices were replied by the petitioners denying the allegations throughout and prayed that they may not be terminated from their services treating the appointment orders lawful. The Secretary Excise and Taxation Department (respondent -2) not agreed with the reply of the petitioners. Resultantly, on 03-03-2014 he issued office order vide No,Sec(R)-Admin(13)/2012-13 terminating the service of the petitioners. The order (hereinafter) be called the termination order is reproduced as under:- ' No . Sec (R)-Admn-13/2012-13 Gilgit the 3rd March, 2014 ' Office Order ' Consequent upon the inquiry conducted by the Chief Minister Inspection Team Gilgit-Baltistan manifested there have been irregular appointments in the Directorate of Excise and Taxation GB and subordinate offices and recommended for taking due course of action. Thereupon, the Secretary Excise and Taxation Gilgit-Baltistan hold formal inquiry, issued necessary show cause notices, to the concerned officials giving defense opportunity of personal hearing and on observance of due process/procedure came to the final conclusion that the appointment were irregular on the under mentioned grounds:-
1. The posts against which appointments made were temporary in its nature and that have neither continued nor reflected in the NIS for the financial year 2013-14. Thus on- non-existence of posts the services of the incumbent against those posts were seized to exist.
2. The appointments were made in gross violation of rules/ procedures. Services of contingent employees (unpaid) who even have not completed one year pre-requisite service have been regularized through an unauthorized DPC/DSC in negation of incomplete/unauthorized.
3. Contingency appointment orders containing no designation of the posts have been considered for regularization/adjustments against the designated posts up to BS-14. It negated the very essence of regularization.
4. The Secretary Excise and Taxation, Gilgit-Baltistan in consideration of the above facts has been pleased to terminate the services of following individuals from the posts as mentioned against each by declaring the appointments as ab-initio and null and void.
3. (sic) A perusal of the above referred termination order shows to be containing three allegations.
Firstly, the posts against which appointments had made were temporary which neither have been continued nor reflected in the NIS for the financial year 2013-14. Secondly, the appointments were made in gross violation of rules and the procedure. Services of the contingent employees (unpaid) who even had not completed one year pre-requisite service have been regularized through an unauthorized DPC/DSC in negation of observance of transparency and merit and thirdly, the contingency appointment orders containing no designation of posts have been considered for regularization/adjustment against the designated posts up to BS-14 which negates the very essence of regularization.
4. Since the termination order of the petitioners from their services created commotion, for a large number of families were adversely effected on account of rendering the petitioners jobless, therefore, the petitioners filed appeals in the Gilgit-Baltistan Service Tribunal challenging the termination order. At the same time they also preferred appeals to the Chief Minister, Gilgit- Baltistan seeking the termination order of each appellant may be set aside and their' services may be restored by accepting the appeals to meet the ends of justice. The appeals filed in the Service Tribunal were pending adjuilication that on 16-06-2014, the Chief Minister Gilgit-Baltistan was please to accept the appeals restoring the service of the petitioners, set aside the termination order and directed the respondents concerned to restore the services of the petitioners and to implement upon the restoration order under intimation to the Chief Minster Secretariat vide his restoration order dated 16-6-2014. The respondents Nos.1 and 2 did not comply the restoration order rather they applied for reviewing of the same. The Chief Minister while turning-down the petition for review passed remarks that the restoration order dated 16-06-2014 stands intact Please". The respondents did not comply the restoration order rather they again preferred another review petition to the care taker Chief Minister seeking review of the restoration order but inconsequence. The care taker Chief Minister in review petition passed the fallowing remarks:- "Order issued by previous Chief Minister on 16-06-2014 vide No,CM Secretariat-1(14)/2014 stands intact and same be implemented".
Sd xxx Chief Minister 18-5-2015
5. The respondents again ignored the orders of the Chief Minister, avoiding restoration the services of the petitioners, hence the circumstances compelled the petitioners to file this petition seeking writ of mandamus against the respondents for compliance of the restoration order of the Chief Minister.
6. We have heard M/s. Basharat Ali and Ijalal Hussain Advocates for the petitioners and Mr. Mehmood Kamal Afandi Assistant Advocate General assisted by Mr. Lmran Hussain Advocate legal advisor to the Excise and Taxation Department at length and have gone through the entire record of the petition with their able assistance. The learned counsel for the petitioners while agitating the grounds taken in the petition submitted that the petitioners initially were appointed on contingents basis and subsequently basing upon their good performance, the respondent No,2' regularized the services of the petitioners on permanent footing after seeking consent of respondent No, 1 . They next argued that the petitioners have served in the department for a long period, obtained training as per their job requirement from Police Training College Sahala creating a valuable right in their favour. The disputed appointments have taken effect as such the same authority was not legally competent to rescind and recall the order passed by him. They contended that any order passed by a competent authority had the power to undo it but such order after creating certain rights in favour of a person could not be withdrawn, amended under the admitted principle of locus poententiae and termed the termination order dated 03-03-2014, was illegal. The learned counsel argued that the petitioners filed appeal against the termination order before Service Tribunal but in the meantime, the Chief Minister Gilgit-Baltistan in his capacity as Chief Executive of the province and a most responsible authority in the Government set-up intervened in the matter and set aside the termination order re-instating the petitioners in their services from which they were terminated and against the restoration order dated 16-06-2014 the respondents filed review petition seeking review of the order but inconsequence and submitted that in view of the above facts the restoration order of the Chief Minister has now attained finality with full legal force and the respondents despite being juristic did not take help of law for setting aside the order of the Chief Minister as such the petitioners while seeking writ of "mandamus" for compliance of the restoration order against the respondents are very right in the eye of law. The learned counsel in support of their above contention referred the following case law;
(a) PLD 2002 Supreme Court Page-728
(b) 2007 PLC (C.S.) Page-145
(c) 2008 PLC (CS Lahore) Page-715
(d) 2003 PLC (C.S.) 262
7. Mr. Mehmood Kamal Afandi Assistant Advocate General assisted by Mr. Imran Hussain Advocate legal advisor to the Excise and Taxation Department, Gilgit-Baltistan while reiterating the grounds taken by them in their parawise comments on the other hand contended that the contingency appointment orders in favour of the petitioners were fake and fabricated and submitted that these all orders (unpaid) were made as preplan just to pave the way to regularize the contingent service of the petitioners into permanent footing. They submitted that the vacancies against which the petitioners appointed on regular basis were purely temporary and the status of the vacancies being so had lost their existence from 1st June, 2013 because their continuation did not seek by the department from the competent authority and for same reason the posts were not shown in the NIS, therefore, the appointment orders of the petitioners on the vacancies being illegal were liable to be cancelled.
' They argued that besides the above facts, the disputed appointments were made without following the given procedure vide which the posts had to be advertised first for opening to all and secondly a proper and due test/ interview was required to be conducted and thereafter a merit list was to be prepared so as to issue appointment letters accordingly. They argued that the disputed appointments have been made through backdoor arrangements without following the procedure approved for and when it is proved that an appointment in Govt. Job has been made without observing the procedure same can be cancelled at any stage even without issuing notice for showing cause to the individuals. They argued that since a huge miscarriage of justice has occasioned in this matter leading to believe that corrupt and malpractice has committed by the authorities concerned, the NAB can take cognizance in such cases and accordingly in this matter the NAB Gilgit-Baltistan has started investigation so as to file a reference against the responsible officials and such inquiry is in progress. They next argued that since the termination order has been issued by the Secretary Excise and Taxation Department, therefore, the Chief Secretary being the next senior authority was competent to entertain departmental appeal but the petitioners did not preferred such appeal to the Chief Secretary rather opted the office of the Chief Minister Gilgit- Baltistan for such appeal, was illegal in the eye of law. They argued that the Chief Minister is not competent in the matter to interfere and pass restoration order. In favour of the petitioners that also without adopting the proper procedure and obtaining comments from the department concerned. They submitted that the restoration order dated 16-06-2014 of the Chief Minister Gilgit- Baltistan being without lawful authority had no legal force to be acted upon. The learned counsel next argued that since the appointments have been made in gross violation of law and procedure as such same could even be cancelled after taking effect and submitted that principle of locus poetentiae applies only when any order creating certain right in favour of an individual was in accordance with law. The learned counsel in support of their contentions relied upon the fallowing authorities.
(a) 2005 SCMR page-534
(b) 2007 SCMR page-318
(c) 2003 PLC page-1029 (C.S) S.C.
(d) 2012 SCMR Page-673
8. We have given our thoughtful consideration to the arguments heatedly advanced before us by the counsel of the parties, have minutely gone through the record of the case and the case law upon which the learned counsel have placed their reliance. The respondents Nos.1 and 2 have defended the termination order on the ground that the appoints of the petitioners on the disputed positions have been made without following the procedure prescribed for recruitment that also through an unauthorized DPC/DSC. We have checked the record from which it is revealing that the concerned authorities firstly have appointed the petitioner on contingency basis and subsequently, the contingency services of the petitioners was brought into permanent footing without issuing any advertisement opening the vacancies for all so that eligible candidates in bulk may have applied for creating opportunity for appointment of maximum efficient candidates. Principally, when a post falls vacant in a department, same firstly is advertised inviting application from the suitable candidates. The next stage then comes for shortlisting of the candidates for test/interview and after conducting the test/interview merit list is prepared. This very procedure has totally been ignored and overlooked in the disputed appointments hence, we are of the opinion that the appointments in question have been made in utter violation of the procedure prescribed for recruitment.
9. Any appointment in violation of rules if made, has been discouraged by the Hon'ble Supreme Court of Pakistan through Judgment reported as 2003 PLC (C.S.) 1029 S.C. Upon which the respondents have placed their reliance. The relevant part of the Judgment is reproduced as under:-- "The appointments of the petitioners undeniably were made in departure to the method for appointment prescribed under Rule 11 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973. Under the above rules, the post is necessarily to be advertised in the newspaper before initiating the process of selection departure from this mandatory rule would render the appointment invalid and the defect is not automatically cured with the lapse of time. Learned counsel submitted that the appointment of Malik Azhar Mahmood, Stenotypest in identical manner, was subsequently regularized and the present petitioners despite the opinion of the Law Division in their favour, where discriminated.. We are afraid, the opinion of the Law Division would not cure the illegality in the appointments made in violation of rules and the same cannot be approved and allowed to be perpetuated on the basis of a favourable opinion of Law Division. The act of making of the appointments in departure to the rules amounts to defeat the equal right of employment on merits, therefore, the- appointments obtained by the petitioners would not create any right in their favour for regularization. The mere passage of time would not be a ground to allow the .Rectification of irregularity on the ground that the appointees should not suffer for the fault of concerned authorities. It is sad that the public functionaries through misuse of their powers without observing the rules, make appointment to oblige their favourities and deprive the deserving persons from their legitimate right of service. We may observe that a holder of public office by misusing his authority in breach of law and public trust, is guilty of misconduct. The Government while taking notice of such regularities should take appropriate action against the concerned authorities under the Government Servants (Efficiency and Discipline) Rules, 1973 to ensure the transparency in the appointments and to eradicate the element of favouritism and nepotism for advancement of policy of merits and fairness."
10. Similarly in an another case referred by the respondents reported as 2012 SCMR 673 the apex Court has held that any appointment made without advertising the vacancies got no legal foundation as such any person if has been appointed adopting other then the above prescribed procedure, could be terminated from such service even without affording opportunity of hearing.
The relevant part of the judgment too is reproduced as under:-- "The petitioners who admittedly got their appointments from backdoor without advertisement of vacancies, inviting the application and completion of codal formalities, in the given facts and circumstances of the case, cannot challenge the principles of good governance adopted at the highest level, mandating each and every appointment in the Government service to be made on merits as per relevant rules and completion of codal formalities or lawfully agitate "any grievance on the pretext" of lack of due opportunity of hearing."
11. In the present case the disputed appointments have been made without opening the vacancies for all through advertisement rather the petitioners initially appointed on contingent basis and after passage of sometime their contingent services were brought into permanent footing. We in the light of above referred Judgment do hold that the disputed appoints have been made in violation of the principle laid down by the apex Court in the above Judgment.
12. Coming to the next leg of the arguments, is the steps taken by the petitioners when respondent- 2 through order dated 03-3-2014 terminated their services. Admittedly, the petitioners were government employees at the time when the termination order was issued. In such situation the low suggests that whenever a Government servant is terminated from his services, he first of all files departmental appeal to type officer or authority next above the authority against whose order the appeal is preferred. In this case the termination order was issued by respondent No,2 therefore, under the relevant rules, the respondent1/Chief Secretary was the appellate authorities in this case and not the Chief Minister and after exhausting this side the suffered employee could recourse to Service Tribunal for redressal. It is evident from the record that the petitioners have not preferred any appeal to the Chief Secretary and instead they simultaneously filed appeals to Service Tribunal and the Chief Minister as well and when the appeals were pending before the Service Tribunal, the Chief Minister was pleased to re-instate the petitioners to their services through restoration order by accepting the appeal before him resultantly, the appeals pending before Service Tribunal were disposed of as withdrawn.
13. As observed above that the termination order dated 03-03-2014 was issued by respondent-2, therefore, under the existing rules, the Chief Secretary was the appellate authority for the dispute instead of Chief Minister hence, we would like to determine if the intervention of the Chief Minister will prevail or otherwise. We would also see here that if the restoration order was illegal then what steps have taken by the respondents for nullifying the order. It is evident from the record that against the restoration order of the Chief Minister the respondents filed a petition seeking review of the said order but the Chief Minister while refusing the petition passed the remarks saying that:- "the order dated 06-06-2014 stands intact please." Subsequently, the respondents again filed a petition for reviewing the order of re-instatement before care taker Chief Minister. The care Taker Chief Minister also refused the petition with the remarks that the "order passed by previous Chief Minister on 16-06-2014 vide letter No,C.M-Sectt.1(14)/2014 stands intact and the same be implemented".
14. After refusal of petitions for reviewing the restoration order, the Chief Minister's Secretariat wrote letters to respondents-1 and 2 for compliance of the said order but no attention was given to the directives, resulting in the filing of the instant petition seeking Writ of "mandamus".
15. The learned counsel for the petitioners have also relied upon case law reported as PLD 2002 SC
728. This case almost is identical to the matter in hand. In the above referred case the Karachi Water and Sewerage Board in view of a decision for retrenchment of its employees had terminated the services of many employees, was intervened by the Chief Minister of Sindh vide which the Chief Minister was pleased to reinstate the terminated employees on their respective jobs but the Board authorities did not comply the order resultantly, the sacked employees filed Writ Petition before High Court of the province but inconsequence. On appeal against the order of the High Court the Supreme Court of Pakistan through the above referred judgment issued writ of "mandamus" against the Board. The another case upon which the petitioners have relied has reported as 2007 PLC (C.S.) 145 passed by Northern Areas Court of appeals. In this case the apex Court of Gilgit- Baltistan in a dispute where an appointment was made without following the prescribed procedure has held that "since the appointment order had taken effect and while giving the benefit of rule of locus poententiae accepted the appeal filed by the appointee holding that" the philosophy behind the dictum is that authority competent to make an order had the power under section-21 of General Clauses Act to undo the same but the order could not be withdrawn or rescinded once it had taken legal effect and after creating certain rights in favour of an individual and that the principle of locus poententiae would be attracted in such situation. It was further observed in the said Judgment saying that "it reflects the scary situation to be faced in future as the illegalities are committed under the nose of controlling authority and that also repeatedly. The lack of accountability and fixation of responsibilities are major factors deviating from the concept of good governance. Illegalities in appointment as often noticed are bluntly committed and misusers not dismayed scale over the limits of accountability". In the instant case we have scanned the record but failed to find out any evidence vide which the authorities who illegally appointed the petitioners have been penalized by the senior authorities. In the existing scenario it has been generally observed that the Government authorities initially appoints their favourite persons on contract basis and after passage of sometime such appointments are regularized, misusing the very essence and concept attached to contractual appointments. For the sake of good governance, it became mandatory for the Government of Gilgit-Baltistan to avoid contract appointment and to ensure that opportunity for obtaining job has been provided to eligible educated persons who are jobless and are wondering for a job. The plea taken by the respondents' counsel that the disputed appointments have been made without observing codal formalities, could not be validated but in the instant case the respondent No,2 as appointing authority has cancelled the appointment orders of the petitioner, has been intervened by the Chief Minister and through order dated 16-6- 2014 the petitioners have been re-instated in their service and under the judgment referred by the petitioners the apex Court has validated the relief provided by the Chief Minister in an identical case.
16. The respondents Nos.1 and 2 despite got terminated the service of the petitioners did not proceed ahead contrary to the order of the Chief Minister rather they, impliedly treated the restoration order was lawful and only sent summaries to the Chief Minister for reviewing the order but failed.. This conduct of the respondents show that the Chief Minister being Chief Executive and most responsible person in the govt. Set-up did not agree with the respondents Nos.1 and 2 and directed them to re-instate the petitioners. If the Chief Minister was wrong in passing the restoration order the respondents as Juristic should have sought remedy against the decision of the Chief Minister by invoking the law related to writ of quo-warranto in which they filed. It will be worth to mention that before us the order of the Chief Minister restoring the service of the petitioners have not been challenged yet, as such no comments with regard to the restoration order are made. However, the respondents at this belated stage are not allowed to rise objection against the restoration order of the Chief Minister. The cases referred by the respondents' counsel decided by the Supreme Court of Pakistan about illegal appoints, no doubt, are mother Judgments on the subject but at the same time the cases referred by the petitioner's counsel being identical and having convincing force particularly when the respondents and the Chief Minister/Provincial Government are not at same page, will prevail in this dispute. The order dated 16-06-2014 passed by Chief Minister is still intact vide which the Chief Minister has already provided relief to the petitioners as such the case law cited by the learned counsel for the respondents are not of much helpful to their contention.
17. So for the plea of the respondents that the case is under investigation of NAB as such the decision of the instant petition in the affirmative would prejudice the investigation, was not correct.
In this regard we are of the opinion that NAB is a National institution functioning under a special law, is free to investigate offences falling within its domain. Every institution is free to discharge its duty but strictly in accordance with the law under which the institution has been created. It is the duty of NAB to have a check upon corruption but with due care so that an innocent person should not be suffered for any negligence or degraded in the society.
18. Consequently, this Writ Petition is accepted. Eventually, it is declared that the petitioner have stood re-instated in service by order dated 16-06-2014 of the Chief Minister passed in appeal as permanent employees of the Excise and Taxation Department G.B and the respondents are directed to treat them accordingly with all back benefits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.