1. ' Through this judgment I propose to dispose of number of writ petitions particulars of which are given in the succeeding paragraphs as common question of law is involved in all these cases.
2. ' The common factor in all these cases is that the petitioners were appointed on the recommendation of Prime Minister Secretariat/Placement Bureau against substantive vacancies on ad-hoc basis to posts carrying BPS-9 to BPS-14. Facts briefly in Writ Petitions Nos.8470/90, 8471/90, 8472/90, 8473/90, 8474/90, 8560/90, 8561/90, 8562/90, 8563/90, 8564/90, 8565/90, 8586/90, 8587/90, 8593/90. 8594/90, 8596/90, 8681/90, 8860/90, 8930/90, 8964/90, 8965/90, 8966/90, 8967/90, 8969/90, 219/91, 199/91, 475/91 and 8539/90 are that the petitioners were appointed as Custom Inspectors in the Custom Department on ad hoc basis after their applications were approved by the Prime Minister Secretariat in BPS-11. Three of the petitioners were appointed as Appraiser Customs in BPS-14. Their services were subject to termination in case post against which they were appointed ceased to exist. It was further incorporated in their appointment letters that their services would be regularised in the light of the Service Selection Rules and they would be asked to compete formally for the posts and the .Final selection would be made on the basis of qualification, merit and quota according to the prescribed recruitment rules/instructions issued by the Government from time to time. The petitioners in these petitions went through intensive training as the letter, dated 24th of October, 1989 issued from the Collectorate of Customs specifically provided that no independent posting be given to any of these ad hoc appointees recruited by the Placement Bureau until they have completed six months intensive training satisfactorily. Accordingly, the petitioners successfully went through the intensive training and subsequently worked independently at different places. They were also asked through a news item appearing in Daily Mashriq, dated 30th of April, 1990 to apply afresh for the posts which they did and went ' through the examinations successfully. They were also directed to appear before the Departmental Selection Committees. It is to be mentioned here that while their cases were under process for regularization, there was change of Government and the Care-Taker Government through letter issued from the Central Board of Revenue dated 20th of September, 1990 directed that "the services of those Inspectors who were recruited during the previous regime on ad hoc basis and possess prescribed qualifications and are within the permissible age limit be regularised (and whose services have not been regularised so far) may be extended for 6 months and within this period their services may be regularised according to the normal rules and procedure through the respective departmental selection committees, and by observing provincial/regional quotas." It is pertinent to mention here that the Care-Taker Cabinet also through its decision, dated 8th of August, 1990 decided that the termination of services of persons appointed during the previous Government should be restricted to the minimum. Only in those cases where gross irregularities had been committed in appointments especially in higher grades, termination of services should be ordered. Termination of services in BPS 1 to 15 should be avoided as far as possible (underlined is mine). However, instead of regularisation, the services of the petitioners were terminated through letter, dated 29th of November, 1990 issued in pursuance of Central Board of Revenue, Islamabad Letter C.No, 32/29/90ACE-II dated 27-11-1990.
3. ' The facts of Writ Petitions Nos.8937/90, 8968/90, 8675/90, 8865/90, 8595/90 and 8986/90 are that the petitioners were appointed Income Tax Inspectors/Excise Inspectors in BPS-11 on ad hoc basis for six months. Their services were extended for the period of another six months. Another extension of six months were given to them during the period of Care-Taker Government as mentioned in the preceding paragraph. The petitioners Were also directed to appear before the Departmental Promotion Committee which they complied. However, instead of regularising the services of the petitioners, the same were terminated on the basis of a decision taken by the Cabinet on 12-11- 1990.
4. ' The facts of Writ Petitions Nos.1509/91, 7748/90, 7598/90, 7597/90, 7367/90 and 7368/90 are that the petitioners were appointed Sub-inspectors/ASI in FIA in BPS-11 and 9 respectively on ad hoc basis on the recommendation of Placement Bureau. One .Of the. Petitioners namely M. Mazhar Saeed of W.P. No,7367/90 was appointed Inspector in BPS-14. These petitioners went through training at Police College, Sihala, and also worked at independent places. However, their services were terminated on 10th of September, 1990/30th of September, 1990 pursuance to the Cabinent decision.
5. ' It is argued by the learned counsel in all these cases that the petitioner's services have been terminated in an arbitrary manner simply on a Cabinet decision without application of independent mind. In the cases of employees of Customs Department an omni bus order has been passed terminating the services of 32 incumbents by one stroke of pen. It is their case that the petitioners, having satisfied the qualificational requirement, were appointed against the substantive posts, successfully completed the training and passed the examination, acquired valuable rights which could not have been taken away without providing any opportunity of hearing to them. Another argument has been advanced that the employees similarly appointed in Grades 1 to 5 have been retained in service while the petitioners have been meted out a discriminatory treatment without any legal justification. As far as the question of jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan is concerned, it is argued that the embargo placed by Article 212 of the Constitution would not be attracted firstly on the ground that the petitioners' fitness to be retained in their jobs has been determined simply on the basis of their appointments during the previous regime which aspect cannot be challenged before the Services Tribunal and secondly it is a policy decision of the Cabinet as is evident from all the impugned orders and the authorities have simply implemented the same without application of independent mind in an arbitrary manner. The departmental authority has nothing to do with these orders which by no stretch of imagination can be termed as an order passed by the departmental authority, as such the jurisdiction of the Service Tribunal would not be attracted. It is also argued that the action of the respondent is against the avowed policy of the present regime which has embarked upon a path to make Pakistan a truly Islamic Welfare State. This goal, according to the learned counsel, cannot be achieved without following the tenets of Islam as enunciated in Article 38 of the Constitution casting responsibility upon the State to provide facilities for work for all citizens within the available resources of the country.
6. ' Mr. Aftab Iqbal Chaudhry, learned Deputy Attorney-General, has entered appearance in all these cases except W.P. No,8508/90 in which Mr. Yawar Ali, learned Standing Counsel, has appeared. Mr. Aftab Iqbal Chaudhry has filed written statements in these cases and the main ground taken by him is pertaining to the jurisdiction of this Court. He has argued that since the matter pertains to the terms and conditions of a civil servant, as such this Court has got no jurisdiction in view of embargo placed by Article 212 of the Constitution read with section 4 of the Service Tribunals Act, 1973. As far as the merit is concerned, he has mainly argued that since the appointments of the petitioners were made in violation of rules and regulations, as such their services were rightly terminated. He has further explained that the petitioners being ad hoc appointees their services have been terminated in accordance with section 11 of the Civil Servants Act, 1973. In support of his arguments he has relied upon The Superintendent of Police, Headquarter, Lahore and 2 others v.
7. Muhammad Latif PLD 1988 SC 387, Abdul Wahab Khan v. Government of the Punjab PLD 1989 SC 508 and Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999.
8. I have considered the contentions. It is pertinent to mention here that in all these cases the petitioners were appointed against substantive vacancies after they satisfied the requirement of qualifications for their respective jobs. It is nobody's case that either the petitioners lacked requisite qualifications or the authority who had appointed them lacked competence to do so. The only objection taken on merit is that they were appointed by previous regime in clear violation of rules and regulations and without recourse to the departmental selection committee. The bar of jurisdiction under Article 212 of the Constitution is not absolute. It is co-extensive with the jurisdiction of the Service Tribunal i,e, the jurisdiction of the High Court is only excluded in those cases which fall within the purview of Service Tribunal. Under section 4(1) of the Service Tribunals Act (LXX of 1973), an appeal by a civil servant is competent to the Service Tribunal against any final order whether original or appellate made by a departmental authority respecting his terms and conditions of service.
9. ' The expression 'departmental authority' has been defined in explanation to section 4 of the Service Tribunals Act in these words:- "In this section 'departmental authority' means any authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants."
10. In all these cases the impugned orders were not passed by departmental authority within the contemplation of the above explanation. The orders have been simply implemented pursuant to a policy decision of the Cabinet. The departmental authority has simply communicated the decision without application of its mind. Mere communication by the departmental authority of an order would not make the departmental authority as the maker of the same. Application of mind is not visible from these orders. As mentioned in the preceding paragraph by a single stroke of pen, the Collector has terminated the services of 32 employees simply mentioning the decision of the Government communicated to him. The defect is so apparent on the face of the record that by no stretch of imagination it can be said that the authority has applied its mind independently.
11. Reliance in this respect is placed upon Mst. Chanda Begum v. Settlement Commissioner and another PLD 1977 SC 503.
12. ' Since the impugned orders in these cases have not been passed by the departmental authority, as such the appeal would not have been competent nor the Service Tribunal would have any jurisdiction to entertain the same. Hence the bar of jurisdiction imposed by Article 212 of the Constitution would not be attracted. In this view, I am fortified by a judgment delivered by Mr. Justice Shafi-ur-Rehman as he then was reported in 1985 PLC (C.S.) 868 Malik Faiz Muhammad Awan v. Punjab Transport Board wherein the learned Judge held that those persons who entered the service initially in the Government and retained the character of a civil servant, the Managing Director of Road Transport Board would not have any power to retire them as he was not falling within the description of departmental authority. To an objection to the maintainability of the Constitutional petition, the learned Judge held as under:- "So far as the first argument in the alternative is concerned, recourse to the Administrative Tribunal can be had by a civil servant under section 4 of the Act only against an order made by a Departmental Authority and the order must be in respect of the terms and conditions of his service.
13. The departmental authority has been defined in the explanation contained in the same section in the following words 'in this section departmental authority means any authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants'. Once the position is conceded that some of the petitioners are civil servants, the jurisdiction of the Managing Director to determine their terms and conditions of service disappears and he is not a departmental authority for the purpose of section 4. As civil servant a person can be dealt with by the Governor or his delegate in case he has been appointed on a post in connection with the affairs of the province and by the President or his delegate in case he has been appointed on post in connection with the affairs of the Federation. Any authority which does not conform to this description will not be a departmental authority (underline is mine). The Managing Director can certainly, while they arc serving in the Board, determine their terms and conditions for the purpose of and in so far as they are rendering service to the Board. But he has not been delegated any power by the Governor to deal with them as civil servants as such. The Managing Director does not qualify as a departmental authority. No relief being available against his order under Administrative Tribunals Act the bar of Article 212 will not be attracted to these proceedings under Article 199."
14. ' In another case reported in 1985 SCMR 443 "Government of Punjab and others v. Saleem Hussain Gardezi" it was held that since the impugned order of termination was passed by the Review Board constituted under Martial Law Instruction No,21, therefore, it could not have been challenged under section 4(1) of the Punjab Service Tribunals Act, 1974 because the same was not passed by the departmental authority. Reliance is also placed upon "Majeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others" PLD 1980 Quetta 58 and "Afzal Hussain Syed v.
15. Government of Punjab and another" PLD 1980 Lah.
16. 697.
17. The other important factor of this case is that the impugned orders have been passed pursuant to a policy decision of the Cabinet. This aspect has even been admitted in the parawise comments submitted by the respondent department wherein it is stated that the services have been terminated in view of the policy declared by the competent authority. This shows that without examining the individual cases, as a policy decision, en bloc orders of termination have been passed in an arbitrary manner.
18. ' Normally, the policy decisions of the Government are not open to judicial review under Article 199 of the Constitution as under the scheme of our C Constitution, Executive has to be given complete power to formulate its own policy. However, the position would be different if the policy decision adversely affects the vested right of a citizen in which power of interference by the High Court through judicial review would be attracted. Since the vested rights of the petitioners have been effected through the impugned policy decision of the Cabinet, as such the jurisdiction of this Court under Article 199 of the Constitution is clearly attracted. In this backrgound, the cases cited by the learned Deputy Attorney-General are distinguishable and have got no applicability to the facts of the cases in hand.
19. ' The petitioners in all these cases were appointed against substantive vacancies after they satisfied the qualification requirements. All the persons employed through the instrumentality of the Placement Bureau have been thrown on road. Some of them have become overage. It was not the case of the respondents that either the petitioners lacked requisite qualifications or the authority that appointed them lacked the competence to do so. They remained in service for quite some time. During all this period the petitioners worked at different places, went through training successfully, qualified departmental examinations and acquired vested rights. In recognition to the rights of the petitioners, the Establishment Division through its D.O. No,3/2/85-R,2/Pt dated 15-12- 1989 issued direction for their regularization through the respective Departmental Selection Committee. Thereafter, these rights were even reiterated by the Care-Taker Government which also issued direction for the regularization of the petitioners as mentioned in the preceding paragraph. However, all of a sudden, the Government took a somersault and the petitioners' services were terminated simply on the direction of the Cabinet.
20. ' Another important aspect of this case is that the persons appointed in Grades 1 to 5 by the previous regime have been retained in service while the petitioners had been meted out a discriminatory treatment without any justifiable cause. This aspect has not been controverted by the learned Deputy Attorney-General. On the contrary, the same has been admitted, in comments submitted in another W.P.No,1/91 titled "Atif Mehmood Sheikh v. Government of Pakistan etc." which has also been disposed of by a separate judgment of even date wherein it is stated as under:- "Government has decided to terminate the appointments made in an irregular manner by the previous Government except those made in BPS 1-5. The appointments of the petitioners alongwith many others made by the previous Government were considered irregular because the same were made without adhering to prescribed rules and regulations."
21. ' Equal protection and due process of law are embodied in our Constitution in the form of Article 25 and Article 4. There is no rational basis for treating differently persons falling in one group in an identical circumstance. There is no justification and no reason has been advanced by the respondents to treat them differently. It is stark reality and has even been admitted that one set of employees have been given preferential treatment while the other, placed in similar circumstances, have been thrown on road. The impugned orders in these circumstances being discriminatory defy equality protection clause provided in Article 25 of the Constitution as also defy due process of law embodied in Article 4 of the Constitution through which every individual has got inalienable right to be dealt with in accordance with law. From what has been narrated above, I have no hesitation in coming to the conclusion that the impugned orders in all these cases have been passed in a most arbitrary manner without application of independent mind simply at the direction of the Cabinet which has got no concern whatsoever in the matter.
22. ' For the reasons stated above the impugned orders are hereby set aside as having been passed without lawful authority and of no legal effect. There shall be no order as to costs.