JAWAD HASSAN, J. Through this 3rd writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") the Petitioner has impugned the quasi judicial order dated 09.08.2019, passed by the Respondent No.2/General Manager Operation-II, TEVTA, Lahore, being illegal, unlawful, without lawful authority having no legal effect.
2. Learned counsel for the Petitioner submitted that the impugned order dated 09.08.2019 is illegal and unconstitutional because the Respondent No.2 while passing the said order did not adopt the proper procedure as provided under the TEVTA Employees Service Regulations, 2011, amended in 2015 (the "Regulations") and the other relevant laws. Further stated that the Petitioner had successfully completed her probation period as per Clause-A of the appointment letter but astonishingly the Respondent No.2 issued her termination order dated 14.06.2018 illegally and unlawfully under the said Clause-A. Added that the Petitioner approached this Court and filed W.P.
No.2625 of 2018, wherein the aforesaid termination order was suspended vide order dated 01.10.2018. But the Respondent did not allow her to join the duty, then the Petitioner filed Crl. Org.
No.244/2018, wherein notices were issued; whereupon the Respondent/Department rejoined her for some days. He further urged that on 12.11.2018, the writ Petition was disposed of with the direction to the Respondent No.2 to attend the grievance of the Petitioner and pay her salaries as well as to regularize her duties as per rules, strictly in accordance with law; but till date the Respondent/Department instead of redressing her grievance in compliance of aforesaid order of this Court, is adamant to throw-out the Petitioner by all means from her livelihood, which violates her fundamental rights guaranteed under the Constitution. He lastly argued that the impugned order has been passed on the basis of false allegations without considering her appointment letter, completion of probation period and satisfactory work, hence, the same is liable to be set aside.
3. Conversely, learned Law Officer as well as learned counsel for the Respondent/TEVTA vehemently objected qua maintainability of this Petition on the basis of report and parawise comments and defended the impugned order dated 09.08.2019. Learned counsel for the Respondent/TEVTA argued that the Petitioner did not provide her Domicile Certificate besides her service remained unsatisfactory. Further argued that although while granting interim relief, this Court suspended the termination order dated 14.06.2018, vide order dated 01.10.2018 but while transmitting the same it was not set aside, hence, the same attained finality. He added that the Petitioner has been heard at length by the Respondents/Authorities again and again but she failed to prove her stance, whereupon the Respondents/Authorities upheld her basic termination order dated 14.06.2018.
4. Arguments heard. Record perused.
5. Before any determination, it would be appropriate to review the history of the case. The record reveals that the Petitioner was appointed as "Instructor Professional Cooking" in GVTI (W), Kartatpura, Rawalpindi, vide office order dated 25.04.2017, duly issued by the Respondent No.3/General Manager, TEVTA, Lahore/Authority, by adopting all the legal as well as codal formalities. After completion of the probation period i.e. 6 months, on 25.10.2017, she continued to perform her duty regularly. Thereafter, the Respondent issued her termination order dated 14.06.2018, on the basis of Clause-A of the appointment letter, which reads as follows: "Consequent upon recommendations of Principal, GVTI Kartapura Rawalpindi and District Manager, TEVTA, Rawalpindi; the services of Ms. Saima Noureen (Instructor, Professional Cooking, PS-17, GVTIW Kartarpura, Rawalpindi) are hereby terminated under Clause (A) of her appointment order No.TEVTA/GM(Ops)/Cook/RWP/2017 dated 25.04.2017, with immediate effect."
Whereupon the Petitioner filed W.P. No.2625 of 2018, wherein the aforesaid termination order was suspended vide order dated 01.10.2018. But the Respondent did not allow her to join the duty. Then the Petitioner filed Crl. Orgl. No.244/2018, wherein notices were issued, whereupon the Respondent/Department rejoined her in the training institute. On 12.11.2018, the writ Petition was disposed of in the following manner: "Learned counsel for the Petitioner at the very outset submits, that if direction is given to respondent No.2/General Manager Managing Director, 96-H, Gulberg II, Lahore, to redress the grievance of the petitioner within a shortest possible period, the petitioner would be satisfied.
2. Needless to mention, that respondent/State functionary is bound by law to redress grievance of the public. However, respondent No.2 is directed to attend the grievance of the Petitioner and shall pay her salaries as well as to regularize her duties as per rules, strictly in accordance with law, by providing fair opportunity of hearing within a period of fifteen days after receiving the certified copy of this order. This order shall be conveyed in writing by the learned Assistant Advocate- General to the respondent.
3. With this direction, the petition is disposed of." Thereafter, the Respondent No.2, instead of redressing her grievance, dismissed her representation and her service stands terminated. Feeling aggrieved thereof, the Petitioner filed 2nd writ Petition i.e. W.P. No.549 of 2019, which was disposed of with the following direction: "After arguing the matter at some length, when confronted with the query that the impugned order is appealable under TEVTA Ordinance, learned counsel for the petitioner very candidly states that the petitioner has filed appeal which is pending before the Chairman, TEVTA, Lahore (Respondent No.1). Learned counsel for the Petitioner submits that the petitioner would be satisfied if a direction is issued to the said respondent for early decision thereof.
2. The request being tenable, learned Law Officer concurs with the same. Consequently, this Petition is disposed of with the direction to the said respondent to ensure decision of the appeal, if any, of the petitioner by himself or through any other authority competent in that regard, in accordance with law, relevant rules, polices applicable thereto after hearing the petitioner through a speaking order according to section 24-A of the General Clauses Act, 1897 expeditiously preferably within six week from the receipt of certified copy of this order under intimation to this Court through Deputy Registrar (Judl.) Learned Law Officer shall ensure the compliance of this order."
Whereupon the Respondent No.1/Chief Operating Officer heard the Petitioner and found her innocent and exonerate her from all charges vide order dated 24.04.2019, which reads as follows: "7. After hearing the counter-arguments of the representative of the operations, Human Resource and legal wing of TEVTA, I hold that the issue of over-age, unsatisfactory performance and lack of provision of Domicile are not the material issues, especially when she has provide the Domicile subsequently, and has served the organization for a considerable period of time period, without any disciplinary proceedings in this regard.
8. However, as far as her unverified experience is concerned, the matter is remanded to the Competent Authority i.e. G.M. Ops
(II) for verification of all her professional certificate through special messenger, under clause (f) of the Petitioner's appointment letter, as the non-verification/non-response does not make the experience fake."
Even then the Petitioner was not allowed to join the duty. Thereafter the Petitioner was informed that her matter has been sent again to the Respondent No.2, who after hearing her passed the impugned order dated 09.08.2019.
6. The aforesaid history shows that the confusion began with this Court's order dated 12.11.2018, where Respondent No.2 was directed to attend to the grievance of the Petitioner, pay her salaries and regularize her duties as per the rules, strictly in accordance with law, without setting aside the basic termination order dated 14.06.2018. Hence, the act of the Court in this regard is inaccurate. A patent and obvious error or oversight on the part of the Court in any order or decision may be reviewed in light of the renowned legal maxim "actus curiae neminem gravabit" which is a well- settled articulation of law expressing that no man should suffer because of the fault of the Court or delay in the procedure. This maxim means that an act of the Court shall prejudice no one and it is interrelated with the duty of the Court to reverse any wrong done to a party by its own act. Hence, it is a fundamental doctrine of justice that ensures no person should suffer due to a delay in procedure or a mistake by the Court. It is an inherent obligation in the administration of justice that if a mistake is made, the affected party must be restored to the position they would have occupied had the mistake not occurred. In light of these principles, any clear and patent error, such as that committed in this case, must be undone without shifting blame to the parties, as it is the solemn duty of the Court to rectify its mistakes in the interest of justice and good conscience, with the foremost duty being the application of the correct law. Reliance in this regard is placed on the judgment of the Supreme Court of Pakistan reported as "Homoeo Dr. ASMA NOREEN SYED Versus GOVERNMENT OF THE PUNJAB through its Secretary Health, Department and others" ( 2022 SCMR 1546), the relevant paragraph of the same is reproduced as under: "A patent and obvious error or oversight on the part of Court in any order or decision may be reviewed sanguine to the renowned legal maxim "actus curiae neminem gravabit" which is a well- settled enunciation and articulation of law expressing that no man should suffer because of the fault of the court or delay in the procedure. The maxim 'actus curiae neminem gravabit' means an act of the Court shall prejudice no one. It is interrelated and intertwined with the state of affairs where the court is under an obligation to reverse the wrong done to a party by the act of Court which is an elementary doctrine and tenet to the system of administration of justice beyond doubt that no person should suffer because of the delay in procedure or the fault of the court.
This is a de rigueur sense of duty in the administration of justice that the Court and Tribunal should become conscious and cognizant that as a consequence of their mistake, nobody should become victim of injustice and in the event of any injustice or harm suffered by mistake of the court, it should be remedied by making necessary correction forthwith. If the Court is satisfied that it has committed a mistake, then such person should be restored to the position which he would have acquired if the mistake did not happen. This expression is established on the astuteness and clear-sightedness that a wrong order should not be perpetuated by preserving it full of life or stand in the way under the guiding principle of justice and good conscience. So in all fairness, it is an inescapable and inevitable duty that if any such patent error on the face of it committed as in this case, the same must be undone without shifting blame to the parties and without further ado being solemn duty of the Court to rectify the mistake. In the judicial conscience and sense of right and wrong, the foremost duty in the dispensation of justice is to apply the correct law. In the case of State v. Asif Adil and others (1997 SCMR 209), this Court recapped the well-settled proposition of law that parties should not be made to suffer on account of an act or omission on the part of Court or other State functionaries and also referred to the dictums laid down in the case of Muhammad Hanif and others v. Muhammad and others (PLD1990 SC 859), Fateh Khan v. Boze Mir (PLD 1991 SC 782), Abdul Rashid v. Abdul Salam and others (1991 SCMR 2012), Sherin and 4 others v. Fazal Muhammad and4 others (1995 SCMR 584). Whereas in the case of pensionary benefits of the Judges of Superior Courts (PLD 2013 SC 829), this court held that it is a cardinal principle of justice, that the law should be worn by the Judge in his sleeves and justice should be imparted according to the law, notwithstanding whether the parties in a lis before the Court are misdirected and misplaced in that regard. Whereas, in the case of M. S. Ahlawat v. State of Haryana and another (AIR 2000SC 1680), the Court held that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience."
7. It is important to note that vide order dated 12.11.2018 although the termination order was not set aside but the Respondent No.2 was categorically directed to: (i) attend to the Petitioner's grievance; (ii) pay her salaries; and (iii) regularize her duties as per the rules. However, in the impugned order, Respondent No.2 did not address these directions and instead observed that neither the Petitioner had fulfilled the required criteria nor was she eligible for appointment to the said post in TEVTA. Moreover, the said order dated 12.11.2018 was not challenged by the Respondent/Department and therefore had attained finality. In this regard reliance is placed on the judgment of the Supreme Court of Pakistan reported as "Dr. SAYYID A. S. PIRZADA Versus The CHIEF SECRETARY, SERVICES AND ADMINISTRATION DEPARTMENT and others" (2023 SCMR 1087), wherein it has been observed that: In the present case, the appeal of the petitioner which was filed in the year2008, was illegally disposed of by the Tribunal vide its order dated 27.03.2008 by issuing a direction to the departmental authority to decide his representation. Despite that direction of the Tribunal, the representation of the petitioner was not decided and his appeal before the Tribunal was therefore restored in the year 2011on his application. The order of restoration of appeal was not challenged by the respondents and thus attained finality. The restored appeal remained pending before the Tribunal since 2011 to 2019 and through the impugned order dated 10.12.2019, the Tribunal dismissed the appeal as not maintainable on the ground that it had been disposed of in the year 2008 without considering its earlier order of restoration of the appeal. In these facts and circumstances of the case, and the legal position stated above, the impugned order cannot be legally sustained. We, therefore, set aside the impugned order dated 10.12.2019 and direct the Tribunal to decide the appeal of the petitioner on merits within three months from the date of receipt of copy of this judgment. This petition is converted into an appeal and the same is allowed in the said terms.
(underling for emphasis)
Hence, this Court finds that the impugned order dated 09.08.2019 is illegal, unlawful and has been passed without proper adherence to the directions of this Court and the relevant laws. The Petitioner's fundamental rights have been violated, particularly in light of her successful completion of the probation period and her consistent service record.
8. Record further reveals that the allegations levied in the impugned order dated 09.08.2019 were not considered at the time of Petitioner's appointment. Moreover, the termination order dated 14.06.2018 shows that the services of the Petitioners were terminated under Clause-A of the appointment letter which relates to the completion of probation period. For ready reference the Clause-A of the Appointment letter is also re-produced as under: A. An initial appointment to a post shall be subject to the completion of a probation period of six months as per provision of TEVTA Service Regulation 2011.
Admittedly, the Petitioner had successfully completed her probation period and served the department for a period of 7 months and 20 days, therefore, the termination order was not passed in accordance with law.
9. So for as the salary of the Petitioner is concerned; it is important to mention here that non- payment of salary infringed Petitioner's fundamental rights of life (Article 9), right of exploitation (Article 3), right of dignity (Article 14) as well as right of livelihood (Articles 37 & 38) guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). Reliance in this regard is placed on the judgment reported as "ABDUL QADIR versus DISTRICT EDUCATION OFFICER (EE&M), DISTRICT RAHIM YAR KHAN and another" (2001 PLC (C.S.) 1073) wherein this Court by recognizing the need of salary has held that salary is the reward to render services to an individual or to the State and withholding of payment of salary/wages to an employee/ servant is glaring example of violation of fundamental rights as guaranteed by the Constitution and also amounts to slavery. It was also held that "the Constitution of this country has granted some safeguards to its citizen like safeguards to honour, dignity, life, property, trade and profession therefore, non-payment of salary to a person would tantamount to violation of fundamental rights granted in Articles 2(a), 3, 4, 9, 14 and 18 of the Constitution of Pakistan. Total effect of non-payment of salaries to employee/servant is that they would be suffering in honour and dignity and their quality of life would also be adversely affected, therefore, the fundamental rights granted in the abovementioned Articles of the Constitution would stand contravened". It has further been held that "to earn a livelihood is also a fundamental right of a person and to lead the life according to his own will and sources is his inalienable right and to lead a life in this world and to enjoy the facilities the blesses of Almighty Allah is not only legal and Constitutional right but it is also a basic and fundamental right of a person who comes in this world and for leading such life the emoluments is the requirement and the Legislature has termed it as a salary or wages". Further reliance is placed on "RACTOR COMSATS versus GHULAM UMAR KAZI" (2006 SCMR 1894) in which it has been held that "the High Court has done substantial justice by directing the payment of salaries to the employees in order to save them from starvation". This view was further fortified by learned Division Bench of Gilgit Baltistan in "HUSSAIN versus PROVINCIAL GOVERNMENT through Chief Secretary and 4 others" (2016 PLC (C.S.) 416) and further by Islamabad High Court in "HAMYUN SAFDAR KHAN and others versus PLANNING AND DEVELOPMENT DIVISION and others"
(2016 PLC (C.S.) 642). Moreover, the word salary has been defined under civil service laws of Pakistan as pay and as per Section 16 of the Punjab Civil Servants Act, 1974 (the "Act") a civil servant appointed to a post shall be entitled to the pay sanctioned for such post. This right was further protected under Articles 240 and 242 read with Articles 3, 27, 37 and 38 of the Constitution.
10. In view of the above, this Petition is allowed and the impugned order dated 09.08.2019 as well as the basic termination order dated 14.06.2018 are hereby set aside. The Respondent No.2/General Manager, Operation-II, TEVTA, Lahore, is directed to reinstate the Petitioner with immediate effect; process her case for regularization in accordance with law, rules and policies on the subject; and also pay all pending salaries and benefits (for the work done) if any, as per the applicable rules.