ABDUL SATTAR GORA YA, J. --- Pursuant to advertisement flashed in the newspaper "Daily . Jang" dated 07.07.2007, Secretary , Health Departmen t invited certain applications to fill in certa in posts which includes the post of Laboratory Technician. The qualification has not been prescribed in the adve rtisement afore-noted, however , according to the stance taken by the Executive District Officer (Health), the appointing authority in the case of the petitioner was the EDO and -the qualification for the Lab. Technician was Matric with Science from a recognized Board and (ii) Diploma in Laboratory Technician Course from Punjab Medical Faculty Lahore or from any other recognized Institute. On the basis of the appointment order dated 28.07.2007, petitioner submitted his joining report in the of fice at Rural Health Centre, Khichi W ala.
2. In due course of time, on scrutiny of record, the EDO (Health) found that the petitioner was not eligible to be appointed as he was not possessing the requisite qualification and thus on 03.08.2007, order was passed to dispense with the services of the petitioner . In fact, by the order afore-noted, the order of appointment dated 28.07.2007 was withdrawn, where-after the petitioner has been moving miscellaneous applications to the various authorities including the one addressed to the DCO that by oral arrangement, he is not being permitted to perform the duties and after some time, driven by force of circumstances, instituted this petition before this Court.
3. Learned counsel for the petitioner submits that the petitioner was not privy to any exercise and after having been appointed by the competent authority , his services could not have been dispensed with. Bitterly argued that before passing the said order , he was not given an opportunity of being heard and in any case, the order was running counter to the well-settled principle of Audi Alteram Partem.
4. Conversely , learned Assistant Advocate General stated that since the petitio ner was not possessing basic qualification which fundamentally is required for the purpose of appointment as Lab. Technician, the very appointment order issued by the Department was illegal and on the basis of such an order passed by the competent authority , petitioner cannot derive any benefit. Further argued that since the appointment of the petitioner has been found to be illegal by the competent authority , the petitioner cannot maintain the lis before this Court.
5. I have lent ears to the arguments of learned counsel for both the parties.
6. Condition No. 11 attached to the appoi ntment, order dated 28.07.2007 in terms provides that in case the person appointed accepts the terms & condition s of his appointment, he should report his duties to the SMO I/L RHC, Khichiwala for duty and would have to produce Medical fitness certificate from MS DHQ Hospital, Bahawalnagar .
The offer was valid within fifteen days from the receipt of this order . If he failed to report on duty within the prescribed time, his appointment order shall automatically be considered as cancelled. His appointment was subject to verification of his character and antecedent by Police Department and the record submitted by him. It is the case of - the petitioner that the requisite documents within the specified period of 15 days were submitted to the competent authority and even prior to that, his application seeking appointment order was supported by the testimonials and the meritorious record possessed by him; where-after the petitioner was allowed to join duties.
The position, therefore, in any event, which emerges is that the said reservation clause contained in the contract appointment order , was not invoked in the case in hand and it was quite some time thereafter that the competent authority had chosen to throw the petitioner out of service vide order dated 03.08.2007.
7: In the report & para-wise comments furnished by the EDO (Health), he came out with the plea that the initial order of appointment was not proper and the competent authority was well within his jurisdiction either to rescind or withdraw the order . The contention has no force. This question came-up for consideration in Mirza Rizwan Ahmed v. Chairman, Technical Education and Vocational Training Authority , Government of Punjab & another (2008 PLC (C.S.) 224), wherein it has been held that once the appointment order is issued, the employee taken on contract basis cannot be thrown out of service except by a proper procedure provided by the Punjab Removal from Service (Special Powers) Ordinance, 2000 or under the PEEDA Act. It was held that the phrase 'every person' in the relevant Statute afore-noted, was of much significance and extensive scope which would bring within its ambit all persons covered by Section 2(c) of the Special Powers Ordinance and no action could be taken without having adopted the proper procedure in law. So far as the competency of the petition is concerned, the said Judgment also furnishes a complete answer to the proposition.
8. This is admitted ground between the parties that petitioner is in possession of the following meritorious record:--
(i) Certificate issued by the Skill Development Council, National Training Board, Islamabad.
(ii) Diploma in Nursing and Certificate issued by the Army Medical Corps.
(iii) Advance Course done in Homoeopath ic Medicines vide Certificate dated 06.12. 1990 issued by the Government of Pakistan, National Council for Homoeopathy .
9. Bare perusal of the advertisement flashed in the newspaper would discernibly show that the said qualification was not prescribed in the advertisement and it was thereafter , the Department woke up and came out with the plea that the qualifications shown in column No. 2 of the chart drawn by the Health Department should have been there the detail whereof, has been given in the beginning, paragraph of this order . Petitioner never claimed at the time of appointment that he was in its possession of the documents now required by the Department which in its assessment is .a condition precedent for the purpose of appointment. Diploma issued by the Principal/CEO/MD of the Institute College was brought on the record which qualification is equivalent to the one demanded by the Department. Petitioner never misled the competent authority that he was in possession of some instrument other than the one required by the appointing authority . Meritorious record of the petitioner was available before the competent authority when the appointment order was passed on 28.07.2007. In the merit list, petitioner's name was shown conspicuously that he has been selected at the relevant time. The issue of qualification was adjudged favourably to the petitioner . The propos ition of law is too settled to admit any debate that on the basis of appointment order , certain rights were accrued to the petitioner and such appointment remained operative for more than one month. As and when the order was acted upon between the parties and the petitioner on the basis of action taken by the authority , achieved some status in life, the appointment order could neither be rescinded nor withdrawn. In fact, for all practical purposes, the Department lost the right to repent. Reference may be made to Syed Afzal Hussain Naqvi v. The Government of the Punjab through Director Manpower &. Training Punjab and 2 others (1985 PLC (C.S.) 133), Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCMR 15) is also quoted with advantage in which the issue was settled by the apex Court that even if on the basis of computer error, some one or the alumni earned a right, the same cannot be withdrawn. Learned counsel for the petitioner states that he would not claim any salary for the period he remained out of service.
10. There is yet another reason to upset the impugned order passed by the EDO (Health). Ouster of the petitioner from service mention no reason whatsoev er and now the stance taken before this Court by the Department is that the order passed by the competent authority at the relevant time was found illegal and running counter to the Rules on the subject but no detail in that regard was mentioned in the impugned order . Absence of such reason by itself is a sufficient reason to dub the impugned order as mala fide. Petitioner was not afforded any opportunity of being heard and had it been so, the petitioner could have explained his position in a better manner . I am fortified in my view by Abdul Salam v. Government of N.W.F.P. through Secretary , Department of Education Secondary , N.W.F.P., Peshawar & others ( 2007 PLC (C.S.) 179 ).
11. Plea advanced by the Department that after the petitioner submitted his joining report and has been working in the Department, in due course his appointment was found to be irregular , hardly furnishes any lawful justification to withdraw the order of appointment. Once the appointee was considered to be qualified to the appointed, his services could not subsequently be terminated or the appointment order withdrawn on the basis- of lapses and irregularities committed by the. Department itself and in such a situation, domestic proceeding can be initiated against the appointing authority or the person responsible for making appointme nt. In support of the above-said view, reference is made to Muhammad Zahid lqbal and others v. D.E.O., Mardan and others (2006 PLC (C.S)
1216 ) and Secretary to Govt. of NWFP Zakat/Social Welfare Department, Peshawar and others v. Saad Ullah Khan (1996 SCMR 413 ).
12. For what has been stated above, the writ petition is accepted and the impugned order dated 03.08.2007 passed by the EDO (Health), Bahawalnagar is hereby declared to be without lawful authority and of no legal affect.
Respondent Department is directed to allow the petitioner to assume the duty in place of his posting. However , the period of contract shall be reckoned from the date, he would assume the duty . There shall be no order as to costs.