Through this Intra Court Appeal the appellant has assailed the order dated 02.03.201 1 passed by learned Single Judge in Chamber , whereby , Writ Petition No.337/201 1 filed by respondent/petitioner , against his termination order 07.02.201 1 has been accepted.
2. Briefly the facts of the case are that respondent/petitioner (Aftab Ahmad) after undergoing all the requisite procedural as well as codal formalities with regard to eligibility in terms of qualification as well as fitness, was appointed as Constable by the competent authority on contract basis for a period of three years w.e.f. 18.08.2008 to 31.05.2009 and this contract was subsequently extended. Subsequently , however , vide order dated 07.02.201 1 issued by the Commandant, Police College, Sihala, the petitioner was held to be ineligible on the ground that his height was 1/2" below the required standard of 5'.7". This order was assailed by the respondent/ petitioner through above writ petition, which has been allowed by the learned Single Judge in Chamber through the impugned order .
3. It is argued by learned counsel for the appellant that respondent was a contract employee and contractual obligation could not be enforced through writ jurisdiction, but this fact has been overlooked in the impugned order . It has next been argued that respondent's services further could not be regularized as his case was hit by a letter of Government of Punjab, Services & General Administration Department (O&M WING) dated 17th of February , 2010 issued pursuant to a Notification dated 14th of October , 2009 and, contended that principle of locus poenitentiae does not apply to the case of the respondent in the light of case reported in "SHAHID MASOOD NADEEM vcersus DY. C.A.A F., Lahore Cantt and 3 others " (2003 PLC (CS) 1262 ). Lastly , the learned counsel supplicated that requirement of height was one of the basic criteria for eligibility , which the petitioner was lacking, as such, his very induction in service was illegal and he was not entitled for any relief, but the learned Single Judge in Chamber did not properly consider these aspects of the matter .
4. Learned counsel representing the respondent/ petitioner argued that before his induction in service the petitioner was referred by the competent authority itself to the Medical Board and the said Board headed by Medical Superintendent, District Headquarters Hospital, Rawalpindi declared him eligible in terms of fitness, where after the petitioner's height was cross-checked by the concerned quarters and no objec tion with regard to his alleged deficiency in height was raised. The learned counsel next argued that after going through all the requisite procedure the respondent was issued appointment letter , pursuant to which he joined his place of posting, as such a valuable right under the principle of locus poenitentiae has been accrued in his favour , which could not be taken away_In this respect, learned counsel placed reliance on the case "THE ENGINEER-IN-CHIEF BRANCH through Ministry of Defence, Rawalpindi and another versus JALALUDDIN " (PLD 1992 SC 207). The learned counsel lastly added that even if there was any illegality in the appointment of the respondent, as repeatedly held by the apex Court, instead of taking action against the concerned delinquent autho rities, petty employee like the respondent has been subjected to victimization, which is not the mandate of law .
5. We have heard the learned counsel for the parties and perused the available record.
6. This remains an admitted fact that before his appointment as Constable the respondent/petitioner was referred to a Medical Board constituted by the competent authority itself, where the respondent was issued a Medical Certificate showing him eligible in term of height and further another documen t has been brought on the file according to which the concerned quarters also cross-checked the height of the respondent and declared that he was possessing height of 5'.7". No challenge has been thrown by the appellant either to the above referred document or even to the medical certificate issued by the Medical Board from District Headquarters Hospital, Rawalpindi.
7. As regards the contention of learned counsel for the appellant with regard to maintainability of writ petition, it is settled principle of law that when any action is proposed to be taken against an employee appointed even on ad- hoc or contract basis, a regular inquiry has to be conducted, so that the concerned employees must not only know the allegations against him, but also be able to defend himself before the Enquiry Officer, similarly right of personal hearing also cannot be taken off. In this case, the respondent was appointed after fulfilling all the codal as well, as procedural formalities with regard to his education, age, physical fitness and height, etc. When any such allegation is leveled that the employee did not possess any of such qualifications, then his case would squarely be covered by "misconduct", and initiation of regular inquiry becomes imperative. Therefore, the action taken by the concerned against the respondent in this case, cannot be approved, which otherwise, amount to spoiling the whole future prospects of the poor employee. In this behalf, reliance is placed on the case "THE SEC'RET ARY, GOVERNMENT OF THE PUNJAB, through Secretary Health Department, Lahore and others versus RIAZ UL HAQ" (1997 SCMR 1552 ), and " Rana ASIF NADEEM versus EDO, ETC" (PLJ 2008 Lahore 718 ).
8. It is an admitted position that no action has been taken by the concerned authority against the quarters solely responsible for ignoring the required height standards, if at all the respondent lacked. Furthermore, after issuance of appointment letter to the respondent, joining of service by him and even further extension in his contract period, the case of the petitioner was squarely covered by the principle "locus poenitentiae". Even otherwise, if the departmental authorities were adamant to reconsider the appointment of the respondent, they could not be allowed to sideline the golden principle of "audi alteram partem", as before taking any adverse action, they were bound to have issued Show Cause Notice, to have given him proper opportunity of hearing and only then any unfavorable action could be taken against him. So far as the case law referred by learned counsel for the appellant i.e. SHAHID MASOOD NADEEM vcersus DY. C.A.A.F ., Lahore Cantt and 3 others " (2003 PLC (CS) 1262 ), is concerned, the dictum laid down in the said case would not apply in this case. In the cited judgment, it has been held that an illegal order even if given effect, would not change the status or create any right, whereas, in the case in hand, the respondent was appointed after fulfilling all the requisite formalities, as such, the appointment letter of the respondent could not be said to be an illegal order , thus, the same already having taken effect, the rights flowing from the same could not be snatched.
9. Although the learned counsel for the appellant laid much stress on the above referred letter of S&GAD dated 14th of October , 2009 and dated 17th of February , 2010, but we are afraid the case of the respondent also could not be brought within the parameters set down in the said letter , as it only required fulfillment of conditions of rule 18, 19, 20, 21 and 21-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Rule- 18, ibid provides educational qualification, experience and age limit, rule-19 deals that no person shall be appointed to a post unless he is citizen of Pakistan (unless relaxed by the Government) and no person shall be appointed who has married a foreign national, rule-20 imposes condition that candidate must have the domicile of Province of Punjab, under rule-21 the candidate must be in good mental and bodily health, etc. and rule 21-A no person could be appointed to a post unless he produced certificate about his chara cter. Therefore, no where in the said letter height limit has been provided . The learned counsel when confronted with this situation, tried to emphasize that the word used "etc" in the said letter , sufficiently cater the requirement of ``height" as well, which the petitioner lacked, as such, his case could not be considered for regular appointment. But, we disagree with the above contention of learned counsel for the reason that no negative interpretation based on mere hypothesis can be imported to deprive a person of some of his rights. When the authorities issued the letter dated 17th of Febrtiary , 2010, they specifically mentioned the parameters which had to be evaluated i.e. educational qualification, age, domicile, good health and character certificate. This has never been the case of the appellant that respondent either lacked the minimum educational qualification, was of lesser age or that he did not possess the domicile or did not possess good health and antecedents, as required by the rules and the appellant could not go beyond these conditions. Furthermore, the conditions imposed in the Standing Order No.1, issued by the Inspector General of Police. Punjab Lahore could not be given preference over the letter issued by Government of Punjab S&GAD Department, as no other subordinate authority could be allowed to add or delete the conditions without prior approval of the senior authority (in this case Government of the Punjab). Here we would like to quote a legal maxim "In praesentia majoris potestatis, minor potestas cesst " (In the presence of the superior power , the minor power ceases.)
10. For what has been discussed above, no interference is called for in the impugned order of learned Single Judge in Chamber . This I.C.A. is therefore, dismissed.