ABID HUSSAIN CHATTHA, J. This Judgment shall decide the titled and connected Writ Petitions No. 10336 / 2019 and 3868 / 2021 impugning series of orders dated 20.05.2015, 17.06.2019 and 24.07.2019 since common questions of law and fact are involved therein.
2. The brief facts of the case are the Petitioner was appointed as Patwari by the National Highway Authority (the "NHA") established and existing under Section 3 the National Highway Authority Act, 1991 (the "NHA Act") on daily wages basis on 04.01.2006 for a period of three months. Since the date of appointment, the Petitioner continuously performed his duty without any adverse service record. The appointment based on daily wages was extended after every three months without any service gap. The Petitioner was regularized along with a number of other employees vide Order dated 12.10.2011 after approval of the Chairman NHA in compliance with the decision of the Cabinet Sub-committee taken in its meeting held on 13.09.2011 regarding regularization of daily wagers / contract employees of various Ministries / Divisions / Attached Departments / Autonomous Bodies / Organizations, etc. Daily wagers with requisite education having age of less than fifty years and having completed three or more consecutive spells of service as on 30.06.2011 were regularized in accordance with the prescribed criteria. The order of regularization stipulated the terms and conditions of regularization. Relevant Clauses No. 3, 4 & 7 read as under: Clause No. 3 "The pay and allowances and other facilities / benefits will be admissible to them as are admissible to other NHA regular employees of their category and will be charged to PSDP allocation of NHA / Projects / own receipts.
Clause No. 4 They will be on probation for a period of one year, extendable for further one year. If they fail to complete the probation period due to unsatisfactory performance, their appointment will stand terminated without any notice.
Clause No. 7 The regularization will also be subject to satisfactory verification of their character and antecedents. Negative report from any agency or persons not fulfilling the condition for qualification as per NHA Rules will also result in withdrawal of the regularization order without any further notification / intimation."
3. However, vide impugned order dated 20.05.2015, the order of regularization dated 12.10.2011 in favour of the Petitioner was withdrawn by invoking Clause 7 thereof. The operative part of the order reads as follows: "As the character and antecedents of both the above mentioned officials have not been verified and an adverse report is received from the concerned Security Agencies in this regard, therefore, regularization of their daily wages service as Patwari (BS-05) made vide office order referred above, is hereby cancelled / withdrawn ab-initio from the same date as provided under clause 7 of their regularization order."
4. The Petitioner filed Writ Petition No. 8225 / 2015 before this Court which was disposed of on 14.05.2019 with a direction to Respondent No. 5 to treat it as an Appeal of the Petitioner and decide the same within 30 days from the date of the Order. The same was declined vide impugned order dated 17.06.2019 which was titled as "speaking order". The operating paragraphs No. 3 to 8 of the said order are reproduced below.
"03. The character & antecedents of appellants were re-verified (Annex-D) from Intelligence Bureau, Islamabad upon their request (Annex-E) but again negative report received.
4. As per ESTA CODE (Annex-G), "In the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointing authority".
5. The NHA Admn. Manual also provides (Annex-H) "if any negative report is received as a result of Verification of Character Roll, or a candidate is declared medically unfit for job, the offer of appointment shall stand withdrawn."
6. In view of above circumstances and rule position order of regularization of daily wage services of individuals concerned was withdrawn vide office order dated 20.05.2015 (Annex-I).
7. The leading contention of the Petitioners in the Petition was that were not heard before passing the impugned order. In compliance of court order, they have heard in person and they just made repeated requests for mercy by withdrawal of the impugned order. The Petitioners failed to produce anything on merit to rebut the stated above legal justifications for the office order.
8. In the light of above facts and in view of relevant rules, it is established that the claim of the appellants against office order dated 20.05.2015 (Annex-I) is not based on merit, therefore, cannot be accepted."
5. Later, the impugned Order dated 24.07.2019 was passed in continuation of earlier impugned orders dated 20.05.2015 and 17.06.2019, whereby, the Petitioner was removed from service ab-initio from the date of regularization i.e. 12.10.2011.
6. Learned counsel for the NHA at the very outset raised a preliminary objection regarding the maintainability of this Petition. He submitted that the Petitioner after the order of regularization became a civil servant for all intents and purposes. As such, the only remedy available to him was to approach the Service Tribunal. This Petition was not competent before this Court in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"). It is stated that the Petitioner had become a regular employee from the date of order of regularization under clause 3 thereof. Further, Section 13(3) of the NHA Act declares service of the NHA as the service of Pakistan, therefore, every person holding a post in the NHA shall be deemed to be a civil servant for the purposes of the Service Tribunal Act, 1973 (the "STA"). The grievances agitated in this Petition relate to the terms and conditions of service. As such, the Petitioner was amenable to the jurisdiction of the STA. Reliance was placed on the cases titled {{"National Assembly Secretariat through Secretary v. Manzoor Ahmed and others" (2015 SCMR 253)}}; {{"Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456)}}; and {{"Syed Nadeem Arif and 7 others v. Federation of Pakistan through the Secretary, Ministry of Communications, Islamabad and 2 others" (1998 PLC (C.S.) 597)}}. On merits, learned counsel did not have much to say except that the impugned orders have been passed in accordance with law based on negative intelligence report against the Petitioner.
7. Conversely, learned counsel for the Petitioner contended that in fact constitutional Petition was an appropriate remedy in the instant case to redress the grievance of the Petitioner. Section 13 of the NHA Act is not applicable since Section 2(1)(b) of the Civil Servants Act, 1973 excludes an employee from the definition of a civil servant who is employed on contract or on work charge basis or who is paid from contingencies. The NHA is a statutory body having statutory rules and the impugned order of withdrawal of regularization reverted the status of the employee to that of a daily wager. Further, this is essentially a matter of regularization which does not fall in the terms and condition of service but relates to determination of suitability and fitness of a person to hold a particular post. Section 4(1)(b) of the STA stipulates that no appeal lies to the Service Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. Reliance was placed on cases titled, {{"Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Islamabad and others v. Ali Naseem and others" (2016 SCMR 1744)}}; {{"N.W.F.P. Public Service Commission through Chairman and another v. Dr. Samiullah Khan and 2 others" (1995 SCMR 2786)}}; {{"Karachi Port Trust through Chairman, Board of Trustee v. Altaf Ahmed and another" (1996 SCMR 1205)}}; {{"Sameen Asghar v. Federation of Pakistan through Principal Secretary to the Prime Minister and 12 others" (2010 PLC (C.S.) 725); and "Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others" (2015 SCMR 1006)}}.
8. Learned counsel for the Petitioner further contended that the impugned order of removal was based on the impugned order of withdrawal of regularization. The same was unlawful and illegal in terms of the mandatory provisions of the National Highway Authority (Efficiency and Discipline)
Rules, 1995 (the "NHA E&D Rules") since due process envisaged therein was not followed. No disciplinary proceedings were initiated regarding any act of inefficiency, misconduct and corruption as stipulated in the NHA E&D Rules. No show cause notice, charge sheet or any explanation thereto was issued in this respect. No right of audience was accorded. As such, the action taken against the Petitioner was arbitrary, capricious and in violation of the fundamental rights of the Petitioner. Reliance was placed on cases titled, {{"The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq" (1997 SCMR 1552)}}; {{"Divisional Forest Officer, Kasur and another v. Zahid Ali" (2011 PLC (C.S.) 1382)}}; {{"Engineer Shaukat Hussain v. Federation of Pakistan through Secretary" (2011 PLC (C.S.)
174)}}; and {{"Muhammad Afzal v. Regional Police Officer, Bahawalpur and others" (2012 PLC (C.S.) 728)}}.
9. Learned counsel, while arguing on merits, vociferously articulated that withdrawal of order of regularization and in consequence thereof, the removal of the Petitioner from service was merely based on a secret non-speaking report of the Intelligence Bureau, Islamabad which had no nexus or concern qua the verification of antecedents of the Petitioner. In the first place, Clause 7 of the order of regularization was against the prescribed qualification or suitability for regularization. Even otherwise, under the applicable Regulation 3.13 of the National Highway Authority Administrative Regulations, 2002 (the "NHA Regulations"), Character Verification Roll was assigned to Superintendent of Police of the home district of the employee or to the Superintendent of Police of Special Branch regarding employees in BS-16 or below. Intelligence Bureau, Islamabad did not figure anywhere regarding character verification of the Petitioner. At the time of initial appointment, character verification of the Petitioner was found fit by the Police Department. Hence, the act of removal from service with retrospective effect after about ten years from the date of appointment as daily wager and three and a half years from the date of regularization was an unlawful act without jurisdiction based on mala fide. Finally, learned counsel asserted that the impugned orders are non-speaking and do not assign any plausible reason while depriving the Petitioner from his vested right to life by removing him from his post. Hence, the impugned orders were passed in blatant disregard of the mandatory provisions contained in Section 24-A of the General Clauses Act, 1897. Reliance was placed on cases titled, {{"Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others" (2015 SCMR 1418)}}; and {{"Pir Imran Sajid and others v. Managing Director / General Manager (Manager Finance)
Telephone Industries of Pakistan and others" (2015 SCMR 1257)}}.
10. The question of maintainability is proposed to be addressed first. The NHA was established and is continuing as a statutory body corporate having perpetual succession under Section 3 of the NHA Act promulgated on 16.06.1991 and published in the Gazette of Pakistan on 29.06.1991. Section 7 of the NHA Act vests the general direction and administration of the NHA and its affairs in the Executed Board which is headed by the Chairman. Sections 13 and 14 of the NHA Act relate to appointment of officers and servants of the NHA and their terms and conditions which are reproduced below for ready reference.
"13. Appointment of officers, servants etc.--(1) The Authority may from time to time employ such officers and servants, or appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit.
(2) Notwithstanding anything contained in Sub-section (1), any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by or serving under the Authority, the Authority may at any time terminate the services of any person, after giving him not less than sixty days notice or pay for the period by which such notice falls short of sixty days.
(3) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973.
14. Recruitment and condition of service.--The Authority shall, with the approval of the Council, prescribe the procedure for appointment and terms and conditions of service of its officers and servants."
Section 31 of the NHA Act proclaims that the NHA may, by notification in the official Gazette, make rules for carrying out the purposes of the NHA Act. Section 32 of the NHA Act empowers the NHA to make regulations not inconsistent with the rules, on all matters for which regulations are expedient.
The NHA, among others, has framed the NHA E&D Rules in exercise of powers conferred under Sections 14 and 31 of the NHA Act. Rule 1 thereof states that the NHA E&D Rules are framed without prejudice to Section 13 of the NHA Act, shall come into force with immediate effect and apply to all employees of the NHA. Subject to the above caveat, they provide comprehensive range of actions to deal with inefficiency, misconduct, subversive activities, disclosure of official secrets and corruption of an employee including holding of properties disproportionate to his known sources of income, having assumed a style of living beyond his ostensible means and having a persistent reputation of being corrupt. Elaborate procedures with respect to inquiry, punishment and appeal are provided in the NHA E&D Rules.
11. It is not the case of the NHA that the Petitioner was removed under Section 13(2) of the NHA Act since no notice was served under the said provision. Had the services of the Petitioner been terminated under Section 13(2) of the NHA Act, the order of regularization of the Petitioner could not have been withdrawn ab-initio from the date of its issuance. Similarly, it is also not the case of the NHA that the Petitioner was ever proceeded against under the NHA E&D Rules since admittedly no show-cause was issued, no charge sheet was framed, no inquiry was initiated and the Petitioner was never accorded the right to defend himself against any specific charge. For reference see, Riaz-ul-Haq case (supra). Rather, the case set up by the NHA essentially is that the order of regularization was subject to fulfillment of terms & conditions which the Petitioner could not fulfill and as such, the same was recalled with retrospective effect. Hence, the moot question before this Court is regarding the suitability and fitness of the Petitioner to regularization which even in the case of a civil servant does not fall within the terms and conditions of service. The NHA is a statutory body having statutory rules. No appeal lies to the Service Tribunal under Section 4(1)(b) of the STA against the order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. In Ali Azhar Khan Baloch case (supra) it was specifically stated in paragraph No. 150 that "the expression "terms and conditions includes transfer, posting, absorption, seniority and eligibility to promotion but excludes fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade as provided under section 4(b) of the Sindh Service Tribunals Act, 1973". Hence, the instance case did not pertain to the terms and conditions of service but related to fitness and suitability of the Petitioner to be regularized and hold the regular post in accordance with the order of regularization. In case titled, {{"Messrs State Oil Company Limited v. Bakht Siddique and others" (2018 SCMR 1181)}}, it was held that regularization is not a part of terms and conditions of service as it is primarily based on length of service. Reliance of learned counsel for the NHA on the Manzoor Ahmed and Syed Nadeem Arif cases (supra) is misplaced. The former was essentially regrading transfer of a civil servant from the Federal Government to a Province on account of devolution under statutory backing. The latter pertained to termination of contractual employees of the NHA who were held to be not governed by National Highway Authority Employees Service Rules, 1995. As such, the cases relied upon by learned counsel for the NHA were vividly distinguishable. Hence, the instant constitutional Petition is maintainable.
12. Perusal of the impugned Order dated 20.05.2015 issued with the approval of Director (personal) reveals that it was issued pursuant to Clause 7 of the order of regularization based on adverse intelligence report. It is noted that there was no allegation of any adverse report against the Petitioner at the time of initial appointment on 04.01.2006 as daily wager. Rather, admittedly the Petitioner had an unblemished service record from the date of initial appointment till the date of regularization. The three-pronged suitability-cum-fitness criteria to regularization was based on completion of 03 or more consecutive spells of service as on 30.06.2011, possessing prescribed educational qualification and having age of not more than 50 years as on 30.06.2011. Admittedly, the Petitioner was suitable and fit to be regularized. Clauses No. 2 to 11 incorporated in the order of regularization are related to provision and verification of educational documents, experience certificates, domicile and CNIC. They included terms and conditions of regularization applicable to the Petitioner along with other employees after regularization. Clause No. 6 provided that the order of regularization was subject to medical fitness for service by the Medical Officer of the NHA or Civil Surgeon of the District. Similarly, Clause No. 7 provided for satisfactory verification of character and antecedents. The NHA in exercise of powers conferred by Section 7(1) read with Section 32 of the NHA Act framed the NHA Regulations which extend to all employees of the NHA. Regulation 3.13 regarding verification of character of employees reads as under:- "Character Verification Roll will be sent to the following agencies for verification within one week of the issuance of appointment office order under confidential cover through registered post by the Deputy Director (Personnel / Admn.):-
(i) Superintendent of Police of Home District of the employee.
(ii) Superintendent of Police, Special Branch, concerned.
(iii) In case of appointments in BS-17 and above, the Verification Roll will also be sent to the Director General, FIA, Islamabad for verification."
Hence, it is clear that the Character Verification Roll was required to be sent to the Police Department within one week of the issuance of the order of regularization. It must have been obtained within a reasonable period. The character and antecedents of the Petitioner were duly verified by the Police Department. As such, even this condition stood fulfilled. There was no provision in the applicable Regulation to refer verification of the character and antecedents of the Petitioner to the Intelligence Bureau, Islamabad. Relying upon the same after the completion of the period of probation and after lapse of more than three and a half years from the date of regularization was an unlawful and mala fide act. Even otherwise, adverse unsubstantiated intelligence reports which were neither communicated nor confronted to the Petitioner could not be made basis for withdrawal of the order of regularization if the Petitioner was otherwise found fit to be regularized. Reliance is placed on the cases titled {{"Sameen Asghar v. Federation of Pakistan through Principal Secretary to the Prime Minister and 12 others" (2010 PLC (C.S.) 725)}}; "{{Muhammad Ashraf v. Government of Pakistan through Secretary Establishment, Government of Pakistan and another" (2007 PLC (C.S.) 669)}}; {{"Muhammad Akbar Khan Hoti v. Federation of Pakistan" (2006 PLC (C.S.) 619)}}; and Aftab Ahmed Manika case (supra).
13. Moreover, perusal of verification of character and antecedents letter dated 01.04.2014 issued by the Intelligence Bureau, Islamabad plainly states that the Petitioner is not recommended for the proposed appointment in the NHA. It is obvious that the report is itself vague, subjective and without any cogent reason or allegation. The impugned order of regularization dated 20.05.2015 based on the above intelligence report was equally non-speaking, unilateral, arbitrary and capricious. The impugned order dated 17.06.2019 acknowledges that the particulars of the Petitioner were forwarded to three agencies i.e. Local Police, Special Branch and Intelligence Bureau, Islamabad and the impugned action was taken only on the basis of the adverse report received from Intelligence Bureau, Islamabad. It further states that the Intelligence Bureau, Islamabad did not recommend the Petitioner for appointment due to his alleged involvement in malpractices and living beyond their known means. It is an irony that no specific allegation of malpractice or evidence regarding living beyond means was listed or confronted to the Petitioner.
In such an eventuality, the right of hearing provided vide impugned order dated 17.06.2019 was illusionary and superficial. It is, therefore, explicitly evident that the impugned order was passed without any reasons and lawful basis. The order of removal dated 24.07.2019 passed in consequence of earlier impugned orders was, therefore, of no significance and was without any legal effect. The right to life as envisaged by Article 9 of the Constitution includes the right to livelihood which cannot be kept hanging on to the fancies of individual in authority. The employment of an employee can be terminated but obviously only in accordance with law, whereas, in the instant case, there was no lawful justification for withdrawal of lawful order of regularization. Once a right was accrued after issuance of lawful order of regularization after complying with all the codal formalities, the same could not have been taken away on mere assumptions or suppositions or whims and fancy of any executive authority. Such right once vested cannot be destroyed or withdrawn as legal bar comes into way under the well-recognized doctrine of locus poenitentiae unless it can be shown that the initial order of regularization was unlawful. Since the order of regularization was a lawful order and thereafter, all the conditions of regularization were fulfilled by the Petitioner, therefore, the impugned orders were not sustainable.
For reference, see cases of Mst. Basharat Jehan and Pir Imran Sajid (supra). Hence, the order of regularization of the Petitioner could not have been withdrawn.
14. Accordingly, the titled and connected Petitions are allowed, the impugned Orders dated 24.07.2019, 20.05.2015 and 17.06.2019 are set aside being unlawful and of no legal effect.