' DR. GHOUS MUHAMMAD, J.--- The common facts and issues arising in Constitutional Petitions Nos.
235 of 1992, 287 of 1992, 288 of 1992, 329 of 1992, 337 of 1992, 338 of 1992 and 37 of 1993 are that the petitioners in pursuance of advertisements issued by the respondents during the days of the Interim Government in 1990 applied for appointments as Primary School Teachers. Admittedly the petitioners were interviewed by the prescribed committees and subsequently after fulfilment of all requisite formalities were issued appointment letters dated 5-11-1990 and 6-11-1990. (Except in Petition No,37/1993). In further compliance to the appointment letters the petitioners obtained medical fitness certificates from respective civil surgeons and appeared before the Sub-Divisional Education Officers for the purposes of acquiring posting orders. Despite repeated requests and reminders the posting orders were not issued, while ultimately the authorities informed the petitioners that due to the change of Government there had been a shift in the Governmental policy as the Government had imposed a ban on new appointments vide Letter No,SO(EVIII)-1- 34/90, dated 7-11-1990. Thereafter, it is alleged that the ban was lifted in January, 1992 and again the petitioners were not issued posting orders despite repeated requests while fresh appointments had been made allegedly on political considerations at the behest of the Members of the National and Provincial Assemblies and in contravention of the Appointment Rules, 1974, in that the new appointments had been made without first advertising for the posts, without any interviews and without determining a merit list. In response the respondents have contended that all appointments had been made as per the Governmental policy. In this regard it would be pertinent to highlight the following paragraphs in the petition as also the comments offered by the respondents which are common in all cases:-- ' Petition: Comments: "That the respondents Nos. 2 to 8 "The appointments are without interview are issuing made as per the political appointment and posting Government policy." orders of Primary School Teachers in District Thar and District Mirpur Khas as per list furnished by the MNAs and MPAs of Thar and Mirpurkhas Districts -in violation of Appointment Rules, 1974, without providing jobs to those who had been issued appointment orders on 5th November, 1990 and 6th November, 1990."
2. All the petitioners have prayed for the following reliefs:-- "(a) Declaration that the refusal of respondents to issue the posting orders as Primary School Teachers to the petitioners is unlawful, illegal, mala fide and have no legal effect.
(b) Declaration that the appointment and posting orders of Primary School Teachers issued in 1992 in District Mirpurkhas and District Thar as per list furnished by MNAs and MPAs without advertisement, interviews and merit list are mala fide, illegal and without lawful authority and have no legal effect in the eye of law.
(c) Direct the respondents Nos. 2 to 8 to act upon the appointment orders dated 5-11-1990 and 6- 11-1990 and issue posting orders of the petitioners. (In Petition No, 37/1993 the petitioner have not prayed for this relief as their dates of appointments are 29-10-1990, 5-11-1990 and 27-11-1992).
(d) Cost of the petition be borne by the respondents.
(e) Any other relief which this Hon'ble Court deems fit and proper be awarded to be petitioners."
3. We have heard the learned counsel from both sides.
4. Our considered view is that once the petitioners have been issued confirmed appointment letters a subsequent imposition of a ban on appointments by the Government shall be of no consequence. On securing the appointment letters the petitioners have acquired a vested right entitling them to posting orders, which could not have been done away through a letter or a notification by the Government introducing a ban. In this regard a Full Bench of the Hon'ble Supreme Court in M/s. Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan 1992 SCM R 1652 has elaborated the law on the subject. In that case it was held that a notification which purported to impair an existing or vested right or imposed a new liability or obligation cannot operate retrospectively in the absence of a legal sanction. In other words the Hon'ble Supreme Court in A that case and in other cases has taken the view that only statutory law can retrospectively act to destroy a vested right, while any subordinate legislation in the form of a notification or letter cannot do away with the vested rights acquired by an aggrieved person.
5. The alleged ban imposed by the Government on 7-11-1990 does not by itself spell out any retroactivity. Accordingly, the said letter on its own construction cannot be interpreted to affect the rights of the petitioners acquired before 7-11-1990 i,e, the date of the notification in question. Even if any retroactivity was provided therein, the same would not have destroyed the vested rights acquired by the petitioner in view of the dicta laid down in the Army Welfare case discussed above.
6. Another way to look into the question is from the angle of section 21 of the General Clauses Act, 1897 and the doctrine of locus poenitentae which is that an authority which is competent to make an order has the power to undo it, but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual (See Ministry of Finance v. Muhammad Himayatullah Farukhi, PLD 1969 SC 407). Upon issuance of the appointment letters and thereafter the petitioners having acted upon them, while decisive steps have been taken the action of issuance of the appointment letters cannot be rescinded.
7. Accordingly, we are of the view that the ban in question which is dated 7-11-1990 had no bearing on the appointments made before that date, while the respondents fell in grave error and acted in excess of authority and jurisdiction to withhold posting orders under the garb of the ban dated 7- 11-1990. Even upon lifting of the ban in January .1992 the petitioners found no success and instead other appointments were made in their place without any invitation to the applicants through advertisements or conducting of interviews or preparation of merit lists upon political considerations. The learned Assistant Advocate-General, while opposing the petitions had submitted that the fresh appointments had been made as per the Governmental policy, however, he has not been able to state what that policy was although ample opportunity was given to the learned State Counsel and the respondents to place the terms of the 'policy' before this Court but it was not done and even the comments are also silent about details of the said 'policy.' Therefore, this submission of the learned Assistant Advocate-General is devoid of any substance. He, however, concedes that right to be dealt with in accordance with law is in alienable and its invasion will indubitably give rise to a cause for complaint which when brought to the notice of the Court needs its immediate intervention and demands exercise of its jurisdiction for redress of the grievances and rectification of the wrong done to the aggrieved person. It would be relevant to observe that Article 4 of our Constitution which is the half-mark of the rule of law guarantees treatment in accordance with law. Thus, obedience to the Constitution is inviolable obligation of every citizen under Article 5(2) of the Constitution and in my humble view wilful disregard of the Constitutional obligations will amount to subversion of the Constitution attracting the provision of Article 6 of the Constitution.
8. Before parting with the discussion on the petitions listed in paragraph 1 above it would be pertinent to underscore that in C.P. No, 235 of 1992 the respondents have taken the stance that the petitioner No, 1 Vesdev did not report to the concerned authorities before the deadline i,e, 30-11- 1990. This averment is denied by the petitioner while medical examination certificates of the Civil Surgeon dated 29-11-1990 are attached herewith but the respondents have not been able to come up with any evidence to support their claim in this regard despite clear instructions from us. In respect of petitioner No, 1 i,e, Abdul Aziz and Muhammad Ramzan in C.P. No, 37 of 1993 a somewhat similar allegation has been made by the respondents which has not only been denied by the petitioners but the respondents have also failed to substantiate their claim by any concrete piece of evidence/documents. In respect of Petition No, 329 of 1992, the respondents have stated that the petitioner, Wahid, did not at all appear in the list of successful candidates and the appointment letter relied upon by him is a forged piece of document. The petitioner has denied the same, while the respondents once again have not brought the record or substantiated their stance despite clear instruction from us.
9. In C.P. No, 328 of 1992 the petitioner was appointed a Naib Qasid in a Government school vide letter dated 13-9-1992 and after completing all formalities the Incharge Headmaster refused to take him on duty. It is further alleged by the petitioner that in his place the respondents wish to make a fresh appointment on political considerations due to the influence of local MPAs of Thar District. We are of the view that the petitioner has acquired a vested right to be placed on duty in view of the appointment letter.
10. In result we allow all the petitions as prayed and further direct the relevant authorities to issue posting orders immediately to the petitioners and also treat them in service for the purposes of seniority and other benefits etc. From the dates of their respective appointments. However, the respondents would be at liberty to take any action in accordance with law and after due notice on grounds of malpractice or illegality, if any, having been brought to their notice alleged to have been committed by the petitioners.