MUHAMMAD QASIM KHAN, J.--- As all arise out of almost similar facts and circumstances and also attack Office Orders dated 4th and 5th of July, 2013 issued by Deputy Manager (T&MP), MEPCO Ltd., Multan with the approval of Chief Executive Officer, MEPCO. The said impugned Office Order , precisely is effect that "In compliance of judgment dated 17.06.2010 of Hon'ble Lahore High Court, B/Pur Bench in writ petition No.701, 703 & 705/2010 and orders of Hon'ble Lahore High Court Lahore dated 12.03.2013 in ICA No.168/2010 and orders of Hon'ble Lahore High Court B/Pur Bench dated 20.06.2013 in Criminal. Original No.279/2013 in writ petition No.701/20 10, the services of following employees appointed as ASSA/SSONALM/Commercial Assistant/Accounts Assistant/DEO/Date Coder , Lorry Driver , on contract basis under direct quota (2009-2010) are hereby terminated with immediate effect."
2. Briefly the facts are that pursuant to advertisement published in daily "NAWAI-I-W AQT, Multan, in its issue dated 03.11.2008 invited applications for appointments against posts of various categories in MEPCO and ultimately appointments were made by the authorities. Some of the persons who were not recruited, filed various writ petitions before this Court at Bahawalpur Bench, and vide a detailed judgment dated 17.06.2010 passed in Writ Petition No.701/2010 "SAFDAR-HUSSAIN, Etc. versus WATER & POWER DEVELOPMENT AUTHORITY , Etc." the whole recruitment process was scrapped. It is pursuant .to the said judgment that through impugned Officer Orders, the services of the petitioners were terminated, hence, these writ petitions.
3. Precisely the argument on behalf of learned counsels for the petitioners is that at the time when basic judgment dated 17.06.2010 was passed in Writ Petition No.701/2010, etc. the petitioners were not made party to those proceedings or they were not afforded opportunity of hearing, thus, they were condemned unheard. Further , argument on behalf of the petitioners is that even when the impugned Office Orders were issued, whereby , their services were terminated, no Show Cause Notice was served upon them, therefore, the impugned Of fice Orders being violative of fundamentally known principle "audi alteram partem", cannot sustain in the eyes of law .
4. It may be mentioned here that a Writ Petition No.8444/2013 "SYED MUJAHID ABBAS versus DEPUTY MANAGER, Etc.' arising exactly out of same facts, remained pending before another Bench and was transmitted to this Court later on. Therefore, Malik Muhammad Naeem Iqbal, Advocate for the writ petitioner was heard on 19.12.2013.
4. On the other hand, the learned Standi ng Counsel, the learned Legal Advisor for MEPCO assisted by their representative and the learned counsels representing private respondents, have, opposed these writ petitions by arguing that the main judgment passed by this Court at Bahawalpur Bench, has attained finality and it was pursuant to the said verdict that petitioners have been removed from service. It is further pointed out that after the said judgment, after scrapping whole of the recruitment process, a fresh process was initiated, wherein, the petitioners participated, they were given' extra 5 marks for experience, but they failed to compete on merit, therefore they are now stopped by their conduct to file the instant writ petitions.
5. I have heard the arguments of learned counsel for the parties at considerable length and examined the record with their assistance.
6. At the very beginning, it may be made clear that the judgment dated 17.06.2010 passed by this Court in Writ Petition No.701/2010 "SAFDAR HUSSAIN, Etc. versus WATER & POWER DEVELOPMENT AUTHORITY , Etc." is not open to question before this Court in these proceedings: not the findings recorded or conclusions drawn the said judgment, could be questioned through writ petition. If any of the party , was aggrieved of the said judgment on any aspect, the law provided entirely , different mode of proceedings for the aggrieved person. In this view of the matter , until and unless, the competent court of jurisdiction records anything to the contrary the said judgment shall he considered Final along with its conclusions.
7. At this stage, it is to be mentioned here that as stated by The MEPCO authorities, after decision of this court through above-referred judgment, a fresh process of recruitment was initiated-according to the guidelines settled, therein the petitioners before this Court fully participated in the fresh recruitment process, they were given extra 5-marks on experience basis but they failed to compete, whereas, successful cand idates were issued appointment letters. This being an admitted position one thing is quite obvious that the petitioners are hit by the principle of "acquiescence" and -estoppel". In this respect, reliance can be placed on the case EHSAN-UR-REHMAN versus ARSHAD ALI KHAN" (2012 PLC (CS) 795), wherein, the Hon'ble Supreme Court of Pakistan held that Petitioners, after participating in the interview' could not attain required merit position; they had acquies ced and were estopped from challenging the proceedings of Selection .Committee---Writ petitions were liable to be dismis sed on that ground- If a person participated in the proceedings and remained unsuccessful in getting the desired result, later on he could not turn round and challenge the proceedings on the ground that same were not conducted by the legally constituted body " On the same analogy , when after the above-referred judgment of this Court, the petitioners participated in the subsequent recruitment process but failed, their cases therefore, are covered by the principle of "acquiescence ", to the extent of recruitment process carried out by the department. Now, after completion of the recruitment process, whether the petitioners could be terminated in a slipshod process, as has been done in these cases or the department was required to initiate a proper procedure, remains to be determined by this Court.
8. Coming to the real issue under contro versy , i.e. the impugned Office Orders, which on the face of it have been issued on the basis of above referred judgment, orders passed in Intra Court Appeal No.1 68/2010 and Criminal Original No.279/2013. It is settled principle of law that once the parties agree on a contract; then both the parties shall be governed by it. Furthermore, while examining such contract, no clause thereof can be read or seen in isolation, rather the whole contract with its collective effect must be considered. I have gone through the initial contracts of the petitioners. In the said contract, two provisions have been provided Which deal with terminati on of a contract employee. According to 'clause 1(1), the appointment on contract was liable to termination on one month's notice or payment of one month's pay in lieu thereof by either side without assigning any 'reason and according to clause. 1(n) the employee will be governed under "Removal from Service (Special Power) Ordinance, 2000" As shall be seen from, the above clause 1(1), employee was entitled to one month's notice or salary for the said period, but this condition could be invoked where appointment was to be terminated without assigning any reason, whereas, in the cases in hand, as are visible by the impugned Office Orders, the authority has given reasons that appointment was being terminated pursuant to certain decisions of this Court. In this view of the matter , despite the fact that impugned Office Orders were being issued pursuant to this Court's judgment, yet the authority was required to abide by the initial contract and thus to have exercised its authority under clause 1(n) of the contract, which provided that employees were to be governed by "Removal from Service (Special Power) Ordinance, 2000". While concluding to the above aspect, Section 3 of the said Ordinance deals with dismissal, removal and compulsory retirement, etc. of certain persons in Government or corporation service, etc. Sub-section (e) of Section 3, refers to one of the ground on which dismissal order could be passed. It reads as under:-
(e) found to have been appointed or promoted on extraneous grounds in violation of law and the relevant rules."
Now, when the case of the petitioners is considered in the light of the above-refer red judgment, on the touchstone of above reproduced sub-section (e) of Section 3 of the Removal from Service (Special Powers) Ordinance, 2000 in para (30) at page 38 of the judgment (W .P.No.701/2010), this Court held that: "The narrative of the facts and circumstances of the case in hand would make it abundantly clear that the actions of the respondents were violative of the provisions contained in Articles 2-A, 4, 9, 14, 18, 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973...................................................................................... ...................................................................................................................................................
31) Accordingly , the above contumacious actions of the respondents are declared to be ultra vires to the constitution the recruitment process was set-aside the following grounds:- i) The respondents made impugned recruitment beyond the scope of advertisement: ii) No stipulated and transparent procedure for recruitment has been followed: iii) Amendment in the recruitment procedure alter publication of advertisement was not permissible in law; iv) The respondents reserved higher percentage of interview marks, in derogation to the judgment of this court as discussed above; and_ v) The actions of respondents are against the principles of natural justice and fundamental rights, enshrined in Article 2(a), 4, 9, 14, 18 and 27 of the Constitution of Islamic Republic of Pakistan, 1973.
Once, it has been conclusively held that in the recruitment process stipulated and transparent procedure was not following, amendment in the recruitment process after publication of advertisement was against law and further principles of natural justice and fundamental rights enshrined in the Constitution of Islamic Republic of Pakistan, 1973 were infringed, the cases of all the appointed persons under the said recruitment process, would be squarely covered by above reproduced sub-section (e) of Section 3 of the Ordinance, and it could safely be inferred that they were appointed on extraneous grounds in violation of law and the relevant rules. Therefore, the competent authority was required to proceed against those appointees under Removal from Service (Special Powers) Ordinance, 2000.
9. This Court is cognizant of the fact that under second proviso to Section 3(e) of the Ordinance, ibid, the authority could dispense with opportunity of hearing after satisfying itself for the reasons to be recorded in writing that it was not reasonably practica ble to give the accused an opportunity of showing cause, but considering the facts and circumstances of the instant case, though the initial recruitment process was scrapped by this Court, yet the fact would remain that after issuance of contract appointment letter's, the petitioners had joined their service against respective positions, a lawful right had accrued in their favour and despite the fact that authority was acting on the judgment of this court, the said right could not be taken away in such an arbitrary manner .
10. Although, 'in the light of earlier' judgment of this Court, the persons who were recruited without proper procedure of law and officers/of ficials of the departmen t were responsible for such illegal recruitment, the beneficiaries i.e. the persons who were appointed could not absolve of their responsibility' as they were party to the illegal actions. In the said process some of the persons were deprived of their lawful right, whereas, in the process carried out 'by the department on the directions of this Court, a number of candidates who were earlier appointed, could not achieve the merit, whereas, the person's who were earlier deprived due to some extraneous considerations in terms of by passing the legal procedure, have now achieved the merit and appointment letters have been issued to them. But, despite that no person could be condemned unheard, irrespective of his personal conduct as such the principle of "audi alteram partem " would fully attract. Even Allah Almighty has bestowed the right on man to be aware of what he is being punished for. The Hon'ble Supreme Court of Pakistan in the case CHIEF COMMISSIONER, KARACHI and another versus Mrs. DINA SOHRAB KATRAK" (PLD 1959 SC (Pak) 45), held that The rule of justice embodied in the maximum audi alteram partem: "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held which may affect the person or property or other right of the parties concerned in the dispute. " In another landmark judgment "PAKIST AN and others versus PUBLIC AT LARGE and others " (PLD 1987 SC 304), the apex Court with reference to Islamic quotes, held that "'Next instance is that of Iblees. He was scolded for having misled Hzt. Adam (P.B.U.H.) into disobedience of Allah's Command. Although, it had all happened in the presence of the Judge (Almighty Allah), the accused (Iblees) and Hzt. Adam (P.B.U.H.); and, may be, upon the now prevailing judicial norms, it could be said that there was no need for an inquiry , yet Allah Almighty culled upon lblees to explain his conduct. It was after hearing the explanation from him which was not .found tenable, that he was condemned and punished for all times to come. The Hon'ble Supreme Court further held that "It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi penal consequences and or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity . This by itself has to be recognized as a basic right. With reference to the principle "audi alteram partem ", the same view was reiterated by the Hon'ble Supreme Court of Pakistan in the case HAZARA (HILL TRACT) IMPROVEMEN T TRUST through Chairman and others versus Mst. QAISRA ELAHI and others (2005 SCMR 678), while holding that violation of principle of natural justice enshrined in the maxim would be enough to vitiate even most solemn proceedings. The case (1) THE UNIVERSITY OF DACCA THROUH ITS VICE CHANCELLOR AND (2) THE REGISTRAR, UNIVERSITY OF DACCA VERSUS ZAKIR AHMED" (PLD 1965 SUPREME COUR T 90), is also referred. This Court cannot shut its eyes from the fact that employment for a common person is source of livelihood and right of livelihood is an undeniable right to a person. If work is sole source of livelihood of a person, then right to work is not less than a fundamental right which has to be given protection. Such appointments are trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service.
Transparency is the hallmark of any effective system. Transparency and fairness of actions of governmental functions can be assessed only on the touchs tone of fundamental rights and here in these cases their actions reflected through the impugned Of fice Orders have not been found protecting the constitutional guarantees.
11. For what has been discussed above, all these writ petitions are disposed of in the terms that impugned Office Orders are set-aside and the authority is directed to proceed further in terms of Section 3(e) of the Removal from Service (Special Powers) Ordinance, 2000, after issuing Show Cause Notices to the petitioners.