SYED ARSHAD ALI, J.---- Through this single judgment we intend to dispose of the instant Writ Petition bearing No. 470-M/2018 as well as the connected Writ Petition bearing No. 551-M of 2018 titled as "Abdul Qasim and others v. Government of Khyber Pakhtun khwa and others" as in both petitions one and the same question of law and facts are involved.
2. Arguments heard and record of the case perused.
3. The Worthy Deputy Commissioner Buner, respondent No. 3, through an advertisement dated 15-1-2018 published in Daily Mashriq, invited applications from experience and determined professionals to fill certain vacant position in CDLD project of the Provincial Government at District Buner . The petitioners were required to hold the basic criteria envisaged in the said advertisement against each post besides being a permanent resident/domiciled of the Province of Khyber Pakhtunkhwa. Needless to mention that the nature of job offered in CDLD was that of a contract for a fixed period of one year, however , extendible for further period upon satisfactory performance of the candidate. All the petitioners among others had applied against the different post and after being shortlisted were called for interview . They were finally recommended for appointment against various posts on 27.03.2018 by the Hiring Committee of CDLD constituted by the respondent No. 3. They were appointed vide office order bearing No. 7859- 62/DC/BunerlEstt/DPC dated 28.03.2018. According to the petitioners, they have assumed the charge of their new posts, however without any rhyme and reasons, the Worthy Deputy Commissioner Buner has withdrawn the order of appointment of the petitioners through impugned office order dated 04.04.2018. In the said order , two reasons have been provided. Firstly that reservation against the appointments were shown by the District Council Buner as some non-locals ( not belonging to District Buner) were inducted in CDLD and secondly there were complaints that against the posts of Sub-Engineer Diploma holders were not consi dered and preference was given to those candidates who were holding higher decree i.e. B.Sc. from a recognized Engineering University .
4. Respondents were put to notice out of whom respondent No. 3 has filed para-wise comments through Ameen Khan (T.M.O.) of the Tehsil Municipal Administration Daggar District Buner. In the comments, the same plea has been reiterated as provided in the impugned order. The said T.M.O. present in the Court was asked whether the Tehsil Council has passed any resolution in this regard, his reply was in negative.
5. We are conscious of the fact that the petitioners were appointed on contract basis and normally the High Court(s) do not entertain the constitutional petition for enforcement of the terms and conditions of service of an employee which are purely contractual in nature. However , the present case is a classic example of maladministration qua weak and casual behavior of a responsible civil servant public functionary . Indeed, it is the basic responsibility of public functionary representing the Government to be steadfast, upright and to work without any fear and intimidation and in the best public interest.
6. Before us is not the enforcement of any contractual obligation but the wires and proprietary of the impugned order passed by the respondent No. 3. Indeed the said order is based on alien and irrelevant consideration.
The first reason for withdrawing the appointment in the impugned order is reservation shown by the District Council Buner that all the appointees did not belong to District Buner. The close perusal of the advertisement, in very categorical terms, mentions that the candidate is required to hail from the Province of Khyber Pakhtunkhwa, therefore it was not a requirement for the post that the candidate must belong to District Buner.
However, out of total number of appointees seventeen (17) in number, seven (07) appointees still belong to District Buner whereas, the remaining appointees belong to other Districts. Therefore, this reason is uncalled for regarding reservation of the District Council Buner. It is noted that the Tehsil Councils are established under the Khyber Pakhtunkhwa Local Government Act, 2013. We have carefully perused the act, however, could not find a single provision of law giving mandate to Tehsil Council to interfere in the administration of Provincial Government. The second reason advanced in the impugned order is more feeble than the earlier one because appointing a person holding higher qualification against the post for which a lower qualification is prescribed is not an illegality rather is in the interest of institution for which the candidate is appointed.
Therefore, irrespective of nature of appointment of the petitioners, when the reasons advanced by the respondent No.3 i.e. Worthy Deputy Commissioner Buner in his order are based on alien consideration then the said order falls within the species of executive actions which are justiciable and can be corrected by the Constitutional Court. It is by now settled law that the actions of public functionaries while dealing with people, if are unfair and un-reasonable, can be corrected by the Constitutional Court. While it is true that under section 20 of West Pakistan General Clauses Act, 1956, the person making appointment has the locus poenitentia to rescind the said order, however, the petitioners, who had been appointed after undergoing the process of selection through competition, had not only acquired a vested right to hold the said posts but have the legitimate expectations to continue their jobs. Indeed, the Government or for that matter its functionaries are not expected to act whimsically and violate its promises which it has made to its citizens in any form, including offering appointment through a transparent process. If the public functionaries have started resiling from their commitments on account of political pressure it will lead to anarchy and chaos in the society.
7. The doctrines of promissory estoppel and legitimate expectation are equitable doctrine that have evolved through Judges adjudicating upon the complaints lodged by the aggrieved parties against unfair and arbitrary actions of the Government. It falls in sphere of neither contract nor statutory estoppel. It can be said that if the Government makes certain promises to any person and the said promises are neither inconsistent with the law of the land nor against the public interest then afterwards the Government cannot refuse to abide by its own promises. However, in case the Government acts inconsistent with its promise or goes against the very spirit of what was promised then the said action(s) of the Government is subject to the judicial review by the Constitutional Court. In our country, the doctrine of promissory estoppel has found acceptance in the case of Federation of Pakistan v. Chaudhary Mohammad Aslam (1986 SCMR 916). However, the same principle has been elaborately expounded in Fecto Belarus Tractors Limited v. Pakistan through Ministry of Finance Economic Affairs (2001 PTD 1829), wherein the Hon'ble Supreme Court of Pakistan Court of Pakistan has held as under:-- "The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted, upon the other party to whom the promise is made arid it is in' fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre- existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defense. There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action. "
In the case of Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others (1998 PTD 2728) while discussing the doctrine of promissory estoppel, the apex Court observed that:- "The doctrine of promissory estoppel is founded on equity . It arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government, changes his position to his detriment, takes a decisive step, enters into a binding contract or incur a liability .
In such case, the Government will not be allowed to withdraw from its promise or representation. However, a general promise without any time limitation cannot bind the Government for all times to come. The enforcement of doctrine of promissory estoppel against the Government or a Government functionary competent to represent on behalf of the Government is however, subject to the following limitations as held by this court in the case of Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652);.- "(i) The doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation;
(ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;
(iii) no emergency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) the doctrine of promissory estoppel will no apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise "
Justice (Retd.) Fazal Karim in his book "Judicial Review of Public Actions", at page 1365 has very precisely elaborated the principle as following:- "The justification for treating 'legitimate expectation' and promissory estoppel' together as grounds for judicial review is, one, that they both fall under the general head fairness; and too, that 'legitimate expectation' is akin to an estoppel. As was explained by Simon Brown LJ in R v.
Devon CC, the various authorities show "that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it". The relationship between them is more clearl y brought out by what Bingham LJ stated in R v . IRC ex p IMK"
"If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to Allow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position.
The doctrine of legitimate expectation is rooted in fairness. "
8. It is mentioned without reiteration that the order impugned gives a clear impression of an offhand and timid decision of a public functionary. In a similar case the leaned Lahore High Court in its judgment in case titled Ashfaq Hussain v. Government of Punjab (2011 PLC (C.S.) 799) has observed that unreasoned orders generate corruption and weakens the institution and slowly eat into foundation of a healthy democracy.
Government cannot make policy and issue notifications which flout the fundamental rights of the citizen.
Every policy, every action and every step taken by the Government and public institutions must be well- thought-out and within the constitutional framework. The best way to achieve good governance by Provincial Government and public institutions is to furnish reasons and pass speaking orders.
Apart from above, the August Supreme Court of Pakistan has never approved such kind of orders which lack reasons or are based on alien and irrelevant considerations even in cases of termination of employees who were appointed on contract or adhoc basis. Reliance can be placed on Mubarak Ali and another v.Government of Punjab (1997 PLC (C.S.) 284), Government of Sindh Muhammad Hussain and 6 others (2000 SCMR 75) and Sarfaraz Ahmed v. Government of Sindh (2006 PLC (C.S.) 1304).
9. In view of the above, when the petitioners were appointed after going through a proper and transparent manner of recruitment then the withdrawal of their appointments on the timid apprehensions cannot be seconded by this Court. Therefore, we are constrained to allow both these connected petitions and accordingly set aside the impugned order dated 04.04.2018 with direction to the respondent No. 3 to strictly act in accordance with law by providing conducive atmosphere of work to the petitioners enabling them to perform their jobs in appropriate manner.