SHAFIUR RAHMAN, J.---These 41 petitions arise out of a decision of the Lahore High Court dated 19- 5-1991 whereby by a consolidated judgment a number of writ petitions on the same subject were disposed of.
2. The respondents were all ad hoc appointees to civil posts in the Federation awaiting regular appointments on those posts. Pursuant to the Cabinet decision their services were terminated.
They approached the High Court by Constitution petitions challenging the termination of their appointment. Three grounds which prevailed in assuming jurisdiction by the High Court and granting the relief to the writ petitioners were as hereunder:- "(i) 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. ::'
(ii) Normally, the policy decisions of the Government are not open to judicial view under Article 199 of the Constitution as under the scheme of our Constitution, Executive has to be given complete power to formulate its own policy. However, the position would be different if the policy decision adversely effects 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 affected through the impugned policy decision of the Cabinet, as such the jurisdiction of this Court under Article 199 of the Constitution is clearly attracted.
(iii) 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 have been meted out a discriminatory treatment without any justifiable cause 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 identical circumstances."
3. As a large number of persons arc involved and an authoritative pronouncement appears to be called for with regard to the jurisdiction of the High Court in such a service matter and the rights of ad hoc appointee, these are fit cases for grant of leave to appeal. The following questions of law arise in the cases:-
(i) Whether the Constitution petitions by ad hoc appointees challenging termination of their ad hoc appointment were not barred by Article 212 of the Constitution?
(ii) The departmental authority has been defined as an authority competent to pass an order while the test applied by the High Court is whether the order passed has been competently passed. It appears that the High Court judgment does not deny the authority the right to pass an order but only if it is properly passed. It does not recognise the situation of a competent authority passing an incompetent order while the definition takes care of it.
(iii) Whether an ad hoc appointee has any vested right to continue in service or to insist on his own regularisation under the law?
(iv) Whether a policy decision taken by the Cabinet with regard to the continued appointment/regularisation of ad hoc appointees or otherwise and its implementation by the departmental officers is not action taken by the departmental authority on the very definition of departmental authority so as to qualify for redress under section 4 of the Service Tribunals Act?
(v)Whether direct recruitment made without open invitation to all eligibles by reference to each individual category of vacancy and qualification therefor is not violative of rule of law, denial of equal opportunity to profession, politically motivated and indefeasible, so as not to be perpetuated in writ jurisdiction?
(vi) Whether classification of Government servants by Grades of pay and difference in treatment of Grades I to 5 recruits from those in higher grades does not disclose a reasonable classification and categorisation.
4. Leave to appeal is granted to examine these questions. The appeals be heard on the present record within one month with liberty to parties to supplement record as they consider fit.
5. In C.P.LA. No.718-L of 1991 there is an application for condonation of delay and the learned Deputy Attorney-General has an explanation for condonation of delay in moving the petition for leave to appeal. Hence, leave is granted subject to limitation, in C.P.L.A. No. 718-L of 1991.
ABDUL SHAKURUL SALAM, J.---I am very sorry to differ with the order of my learned brother Mr. Justice Shafiur Rehman of whose wide learning I am deeply impressed. But my understanding of the cases and conscience does not permit me to grant leave to appeal against the judgment of the learned Judge of the Lahore High Court which has undone patent injustice. I am of the view that law is for the welfare of the people. It is not intended to harm and deprive them of what they have unless they are amiss or that is for general good undoubtedly. Any interpretation of law true to its essence must penetrate to the bottom rock of the truth and not lost in letters of B law. An interpretation which tends to sanctify obvious vengeance, especially when it falls on poor people, to my mind is no just or right interpretation. But annihilation of law.
2. The stark reality and truth is that Ms. Benazir Bhutto established Placement Bureau in the Prime.
Minister's Secretariat. The respondents on the recommendation of the Bureau were rercuited in the lower rung of the civil service by the competent authorities. The opposition to the Prime Minister raised hue and cry against the Placement Bureau for political purposes. The Prime Minister and the National Assembly were dismissed by the President inter alia on the allegation that "the Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 to 242".
The order and the subject-matter is sub judice. No more is being said on this score. But what happened subsequently was that the leader of the Opposition was appointed as a Care-taker Prime Minister and the Cabinet decided to terminate the services of the persons employed on the recommendation of the Placement Bureau. Consequently, the competent authorities communicated the orders accordingly, without even hearing the affected persons, the respondents.
3. The following points are obvious and noteworthy. Firstly, that when the leader of the Opposition became care-taker Prime Minister, displeasure or rancour of the Opposition was given vent to by ordering the removal of the respondents from their service. It was rather petty. Secondly, as far as the authority of the Care-taker Cabinet is concerned, I had said in the case of "Muhammad Sharif v. Federation of Pakistan" (PLD 1988 Lahore 725) in the Lahore High Court that "Care-taker Cabinets have to confine themselves to take care of the day to day administration of the State. They can take all decisions requiring attention or action, may be having far-reaching effects, like in respect of war and peace or earthquake or floods. But they can neither forget the predominant position of their being Care-taker nor can they take undue advantage of their position either for themselves or for their political parties. They have to be impartial to everybody, including their rivals or opponents in the political fields. They cannot take advantage of their official position of care-taker Government at the expense of other political forces or people at large. Neutrality, impartiality, detachment and devotion to duty to carry on day to day affairs of the State without keeping in view one's own interest or of one's own party are the sine qua non of a Care-taker Cabinet. The judgment was upheld by this Court in "Federation of Pakistan v. Haji Muhammad Saifullah Khan and others" (PLD 1989 SC 166). The action of removal of the respondents clearly did not fall within the scope or ambit of the I Care-taker Cabinet whose primary function was to hold election and carry on( day to day administration with the civil servants available and not to throw out those who had been given employment by the previously elected Government.
4. Thirdly, and this is the main plank of the argument of the learned Deputy Attorney-General that the High Court did not have the jurisdiction to grant relief to the respondents because of bar in Article 212 of the Constitution. The Article is to the following effect.
"Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for establishment of one or more Administrative Courts or Tribunals to exercise jurisdiction in respect of-
(a) Matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including `disciplinary matters: ---------------- (2)Notwithstanding anything hereinbefore contained, where any administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of such Administrative Court-or Tribunal extends ... ."
Section 4 of the Civil Service Tribunals Act allows an appeal against the order of a departmental authority.
5. Now a bare reading of the two provisions makes it quite clear that the jurisdiction of the High Court is excluded when a "departmental authority" passes an order. In the cases in hand, the impugned orders purport to be passed by the departmental authorities but it is quite clear and admitted that the authorities did so in view of the Cabinet decision. They did not apply their mind at all. They abdicated their authority completely and carried out what was told to them was the decision of the Care-taker Cabinet. A person typing an order and communicating it even under his signature cannot be said to be passing the order. It is what exactly had happened. This is the truth.
It cannot be camouflaged by linguistic syllogism to knock out the reality, blur it and blow up the untruth as a legal phenomenon. The grievance of the respondents could not be redressed by the administrative tribunals set up. They could only be led to litigation for a long time to come with misgivings in their minds all through. This is not justice, nor such trumpeted speedy justice.
Therefore, I am of clear and definite -view that the jurisdiction of the High Court was not barred in the circumstances of the cases. Rather, it was eminently attracted and justly exercised expeditiously which is the aim of all laws.
6. Lastly and most importantly, the respondents were thrown out of their service without affording them an opportunity of being heard. According to the Holy Qur'an, Allah Almighty, All Knowing did not throw out the Satan without asking him to explain why had he not prostrated before Adam when ordered? Not only Allah is Almighty and All Knowing and the disobedience was before Him, nonetheless, He asked the Satan to show cause. Who can claim more Might or Knowledge that he may throw out many without affording them an opportunity to show-cause or explain? None. The respondents have been hit hard and manifestly for rancour and in order to give effect to the allegation that "the Civil Services of Pakistan have been under minded by disregarding the provisions of Articles 240 to 242". In fact, the result of the impugned action is undermining of the services of Pakistan as every civil servant can apprehend that if he is appointed by the present Government he may be thrown out if the opposition of today comes into Government tomorrow though of course, it is hoped that the tomorrow's Government will not repeat the performance.
7. I am clear in my mind and conscience that the respondents have been thrown out not on account of any blemish on their part but because of having been appointed on recommendation of the Placement Bureau established by previous Government. It was done without even affording an opportunity of hearing to them. When Allah had not done so in respect of even the Satan, the respondents certainly were no worse. The jurisdiction involved by the petitioners is discretionary.
Constitutional jurisdiction, I am sure. Is not called for in the circumstances of the cases to interfere in the order of the learned Judge of the High Court who had granted them relief against the high handedness of the Government and established balance between the citizens and the State. I will, therefore, dismiss all the petitions.
On reference as third Judge.
MUHAMMAD AFZAL ZULLAH, CJ.---I having seen the matter, subject to all just exceptions, consider it fit for grant of leave to appeal -questions of law and Constitution, of public importance, are involved therein. Hence, leave is granted as ordered by Mr. Justice Shafiur Rahman.
ORDER OF THE COURT By majority view, leave to appeal is granted to examine the points raised in paragraph 3 of the opinion recorded by Mr. Justice Shafiur Rahman. The appeals be heard on the present record within one month with liberty to parties to supplement record as they consider fit.
In C.P.L.A. No.718-L of 1991 leave is granted subject to limitation.