SYED MUHAMMAD ATTIQUE SHAH, J.---Through this single judgment, this Court shall also decide present writ petition as well as the connected writ petitions, Writ Petition No, 913-A/13, Writ Petition No, 923-A/13, Writ Petition No, 931-A/13, Writ Petition No,837-A/13 and Writ Petition No, 437-A/16, having identical facts and question of law involved therein.
The petitioners through these writ petitions have approached this Court, with the prayer that on acceptance of these petitions, declarations sought may be granted in their favour and against the respondents and their service position may be retained intact as was before the issuance of impugned dismissal letter No,SO(LG-I)3-595/Inq/MDA/2012 dated 21.02.2013.
2. Brief but relevant facts of the present writ petition and connected petitions are that the petitioners were appointed against various posts, in the defunct Provincial Urban Development Board (PUDB) which was established under section 3 of Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 (Ord: No, 04 of 78) dated 04/03/1978; that the petitioners performed their duties in accordance with law, throughout their service career without getting a single adverse remark , nor have ever been proceeded against for any misconduct whatsoever; that all of a sudden, the petitioners were served with a charge sheet of even number No,SO(LGI) F-14/MDA/2011 dated 13/01/2012 followed by show-cause letters and finally they were dismissed from their service on 21.08.2013; that the charge sheets, show-cause notices and their dismissal from service were illegal, based on malice and mala fide, issued without lawful authority, thus the same are liable to be struck down.
3. Learned counsel for the petitioners argued that the petitioners were appointed in the establishment of defunct PUBD, however they have been proceeded against under the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011, which were not applicable at all to the cases of the petitioners, as their services were governed under the Provincial Urban Development Board Service Rules, 1978, thus petitioners were wrongly proceeded against under the rules which were not at all applicable to their services. They urged that even in the dissolution Ordinance, 2002 it has specifically been mentioned that the services of the employees of the erstwhile board would be dealt with under the Provincial Urban Development Board Service Rules, 1978, therefore, in presence of the rules ibid, there was no question of the applicability of the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011.
4. On the other hand, learned counsel appearing on behalf of the respondents has vehemently controverted the arguments advanced by learned counsel for the petitioners and argued that the board was dissolved under the Ordinance, 2002 and thereafter Local Government, Election and Rural Development Department, Government of Khyber Pakhtunkhwa on 22/09/2011 adopted the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011 for all employees of defunct PUBD/PDA/Local Area Authorities. Therefore, now the services of employees of PUBD are governed under the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011 and, if the petitioners were aggrieved from the impugned orders, they could approach the departmental authority in departmental appeals/representations and thereafter, they could also approach the Khyber Pakhtunkhwa Service Tribunal. Further argued that this Court, in view of bar contained in Article 212 of the Constitution cannot entertain the present writ petitions.
Further argued that the respondents have not committed any illegality or irregularity by taking action against the petitioners, therefore, the present writ petitions being baseless are liable for dismissal and prayed for dismissal of the same.
5. Arguments heard and record of the case perused with the valuable assistance of the learned counsel for the parties.
6. Perusal of the record reveals that the Provincial Urban Development Board was established under section 3 of The Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 (Ord: No, IV of 1978 dated 04/03/1978). For the sake of convenience, provisions of section 3 are reproduced as under: "3. (1) As soon as may be after the commencement of this Ordinance, Government shall, by notification, establish a Board to be called the Provincial Urban Development Board, North-West Frontier Province, to perform the functions assigned to it under this Ordinance."
Functions of the Board have been provided by section 9 of the Ordinance ibid, which is also reproduced below: "9. In order to achieve effective integration of provincial urban development planning by Federal regional and local planning agencies and to ensure that proper planning, and to accomplish other objectives of this Ordinance, the Board shall, subject to such directions as Government may from time to time give, formulate and amend long term, and short term policies for development of urban or as in the North-West Frontier Province, hereinafter referred, to as "Development Policies". "
Thus the main object/purpose as provided by section 9 ibid was to formulate an amend long term and short term policies for development of urban areas of the Province of Khyber Pakhtunkhwa.
7. The petitioners were appointed against various posts in the erstwhile (P.U.D.B) on various dates. It is pertinent to mention here that subsequently the Provincial Urban Development Board (P.U.D.B.) was dissolved through Ordinance No, XVI of 2002.
7(sic) Section 4 of the Ordinance ibid provides for consequential responsibilities. For the sake of convenience, section 4 of the said Ordinance is reproduced below: "Section 4: Consequential Responsibilities: Consequent upon the repeal of the ordinance, the district government of the district concerned shall be responsible to deal with the matters with the board so dissolved in accordance with the provisions contained in section 182 of the N-W.F.P Local Government Ordinance, 2001 (N-W.F.P Ordinance No, XIV of 2001").
However under section 6 of the Ordinance ibid, it has specifically been provided that "the employees of the Board shall be dealt with in accordance with the terms and conditions f their appointment under the Board". It is also important to note that in the very appointment orders of the petitioners, it has specifically been mentioned that: "His services will be governed by the Provincial Urban Development Board Service Rules, 1978 and the rules relating to T.A., leave, medical, pay and discipline etc as framed and amended from time to time."
8. Here it is important to mention that under section 71 of the Khyber Pakhtunkhwa Urban Planning Ordinance, 1978 (Ord: No, 04 of 78) dated 04/03/1978, service rules of (PUDB) were framed and notified on 17 February, 1979. Definition of term "employee" has been provided by section 2(F), which is reproduced below: "(f) "Employee" means a person employed or previously absorbed whether at the Head Office or at project or in a Sub-Office of the P. U.D.B/L.A.A., and as such a person shall be deemed to be in service of the Board."
It is also worth to mention that schedule of administrative powers of the competent authority have been notified, under which the competent authority of all employees in NPS-17 and above was the Board, whereas employees in NPS-12 to 16, Chairman of the Board was competent authority and for employees in NPS-1 to 11, Secretary of the Board was having the power and authority for appointment. However, perusal of the impugned order dated 21st of August, 2013 reveals that the petitioners had been proceeded against under the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011 for the charges mentioned in the charge sheets dated 09.01.2012.
9. It is worth to mention that after dissolution of Board under Ordinance, 2002, the Local Government, Election and Rural Development Department, Government of Khyber Pakhtunkhwa on 22/09/2011 adopted the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary)
Rules, 2011 for all employees of defunct. PUBD/PDA/Local Area Authorities. Therefore, the question which arises before this Court is "whether in the peculiar facts and circumstances of the present case, the services of the petitioners would be governed under the (P.U.D.B.) Service Rules, 1978 or they are to be dealt with under the Khyber. Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011". In this respect, as discussed earlier, section 6 of the dissolution Ordinance, 2002, has specifically been provided that the services of the employees of the board would be dealt with as per Service Rules of the Board, whereas it has also explicitly been mentioned in the appointment orders of the petitioners, that their services have to be dealt with under the rules of 1978. Moreover, it is also well settled principle of administration of justice that "when a thing is to be done in a particular manner it must be done in that manner and not otherwise". Reliance is placed on "Atta Muhammad Qureshi's case" PLD 1971 SC 61, "Mughal Sugical's case" 2005 PLC 634, "Raja Hamayun Sarfraz Khan's case" 2007 SCM R 307 and "Tehsil Nazim TMA, Okara v. Abbas Ali and 2 others" 2010 SCM R 1437. In this view of the matter, this Court reached at the conclusion that as the
(PUDB) service rules of the year 1978 have been made applicable to the employees of the dissolved/defunct board, therefore, they are to be B specifically dealt with under the said rules and not under the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011.
9. Learned counsel for the petitioners have also relied upon the. judgment of the apex court in case titled "Ehsan Ali, Assistant v. Board of Intermediate and Secondary Education, Peshawar through its Chairman, BISE Peshawar and others" wherein in para-6 it has been specifically held: "6. Not because the Beards of Intermediate and Secondary Education are autonomous, bodies having their own service structure, showing the authority competent to take disciplinary actions for any misconduct or inefficiency of its employees and to impose penalty thus, merely adopting or following the provisions of NWFP (KPK) Civil Servants (E&D) Rules would not render the employees of the Boards to be the civil servants, holding public office or authority in the affairs of the Province but for all intents and purposes they are employees of autonomous bodies and are regulated by the statutory rules therefore, they have no right of appeal before the Service Tribunals."
Whereas, in para-7, it has been held that"
"7. In our considered view, the learned Division Bench of the Peshawar High Court did not adhere to the law declared by this Court in Muhammad Mubeen us Slam case (supra) and the rules and regulations, regulating the services of the petitioner were ignored on wrong assumption that E&D Rules framed and published by the Provincial Government for civil servants of the Provinces were borrowed and adopted by all the said Boards and thus, they were civil servants.
Merely following or adopting such rules would not change the status of the employees of the autonomous bodies to be civil servants, in view of the law declared by this Court."
Thus, in view of the above referred dicta of the apex Court, this Court holds that by merely adopting the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011, the status of the petitioners would not change to be of civil servants, particularly when section 6 of the dissolution Ordinance, 2002 specifically provides that Provincial Urban Development Board Service Rules, 1978 would be applicable to the services of the petitioners.
10. In view of the above stated peculiar facts and circumstances of the case, this Court would restrain itself from discussing the merits of the present writ petitions, lest it may prejudice the case of either of the parties.
11. Thus, in view of what has been discussed above, this Court reached at the conclusion that the services of the petitioners were only to be governed under Provincial Urban Development Board Service Rules, 1978 and the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary)
Rules, 2011 were not applicable to the services of petitioners, therefore, the impugned disciplinary proceedings initiated against the petitioners and their dismissal orders passed under Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary) Rules, 2011 are illegal, without lawful authority, void ab-initio and thus liable to be set-aside, therefore, the same are set-aside, however, if the competent authority wants to proceed against the petitioners, then they are at liberty to proceed against them under the (P.U.D.B.) Service Rules, 1978.
12. In view of the above, the instant writ petition as well as connected writ petitions are allowed.