Through this Constitutional petition under Article 199 .Of the Constitution of the Islamic Republic of Pakistan, 1973 petitioners prayed for the declaration of the impugned order of the Deputy Commissioner/District Collector, Layyah respondent No. 1 dated 4-9-1996 withdrawing the enlistment and promotion as Naib Tehsildar and Kanungos of petitioners to be without lawful authority and of no legal effect.
2 The facts leading to the filing of instant petition are that the petitioners after qualifying the Patwari Course joined the Revenue Department as Patwaris. Petitioners Nos. 1 to 11 were enlisted as Girdawar Kanungos on or before 1990. After promulgation of the Punjab Revenue Department (Revenue Administration and Posts) Rules, 1990 petitioners Nos. 2 to 11 were appointed as Girdawar Kanungos by the competent authority. Petitioner No. l was further promoted as Naib-Tehsildar in the year 1993 where he was working in that capacity till the passing of the impugned order.
3. All the petitioners are serving in District Layyah. All of a sudden vide impugned order without any notice or affording opportunity of hearing to them they have been demoted as Patwart by the Departmental Promotion Committee Petitioner No. 1 is demoted from the rank of Naib Tehsildar and petitioners Nos. 2 to 14 froth Kanungos to Patwaris alongwith four others vide Annexure ' B' tiled with this petition. On the same day, 24 Patwaris who are cited as respondents Nos, 8-to-31 in the amended petition were promoted as Kanungos.
4. In the report submitted by the Department it is admitted that petitioners Nos. 1 and 2 posted as Kanungos on 1-7-1987 and 22-10-1990 respectively. Petitioners Nos. 3 to 11 were also enlisted as Kanungos later on. Regarding petitioners Nos. 12 to 14 it is stated that they were promoted on purely ad .Hoc basis. It is further submitted in the report that the enlistment was against the rules and not on merits, hence, the then Deputy Commissioner Layyah referred the matter to the Board of Revenue for advice and further order while observing the enlistment to be against law. The reference made to the Board of Revenue is Annexure ' A' with the comments. The said reference was replied on 19-11-1991 vide Annexure ' B' that the Revenue Minister Punjab was pleased to direct that Deputy Commissioner should at in' accordance with law. One Esa Khan Patwari procured stay order from this Court so the matter could not be finalized and remained in abeyance regarding the enlistment or approving the same by Departmental Promotion Committee. Ultimately on 16-7-1996 the writ petition was withdrawn and the Departmental Promotion Committee in its meeting held on 4-9-1996 while considering the cases of promotion of the Patwaris to the posts of Kanungos on regular basis reviewed the whole situation and keeping the principle of seniority-cum-fitness as also the letter of' the Punjab Government dated 4-8-1992 Annexure ' D' all the petitioners and four others were reverted to Patwaris including petitioner No. I who was working as Naib Tehsildar vide Annexure 'E'. It is also stated in the report that the petitioners were junior to respondents Nos. 8 to 31.
5. Learned counsel for the petitioners contends that the impugned order is without jurisdiction, coram non judice and mala fide and as such is liable to be quashed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. He has relied on Muhammad Aslam and others v. Government of the Punjab and others (1995 PLC (C.S.) 419), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 Supreme Court 738), Malik Hayat v. Supreme Appellate Court of Sind-II at Karachi and 2 others (PLD 1995 Supreme Court 505) and Islamic Republic of Pakistan v.
S.A. Rizvi (1992 SCMR 1309) in support of his contentions. Learned counsel for the petitioners further submits that the Deputy Commissioner is not appointing authority of petitioner No. 1, who is Naib- Tehsildar and the competent authority to pass any order regarding his demotion was Commissioner. The order of the Deputy Commissioner against petitioner No. 1 is wholly without jurisdiction and void ab initio. He also contends that against the promotion of petitioner No. 1 appeal was dismissed by Commissioner vide order dated 16-2-1988. The said judicial order has been nullified by respondent No. 1 in haste although he has no jurisdiction to pass any order regarding his demotion at all. He also adds that the petitioners are borne on the list of Girdawar Kanungos Layyah in the District and were entitled for appointment on regular basis in terms of their seniority inter se and respondents Nos.8 to 31 being on, the list of Patwaris could not be considered for appointment against the post of Girdawar Kanungos under the directive of the Board of Revenue.
6. Learned counsel for the respondents Nos. 8 to 31 conversely submits that this Court has no jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to examine the validity of impugned order, in view of bar provided under Article 212 of the Constitution and has among others mainly relied upon Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCMR 365). He further submits that the petitioners are junior to respondents Nos. 8 to 31 and their enlistment as Girdawar Kanungos was procured through political manoeuvering and were not entitled to promotion in the year 1987 and 1990. According to him their promotion was void ab initio and has been rightly struck down through impugned order.
7. Learned Assistant Advocate-General has also adopted the argument of Mr. Muhammad Younus Bhatti, Advocate for respondents Nos. 8 to 31.
8. In Imam Bakhsh's case referred above Supreme Court laid down as under: "The facts pleaded before the High Court and the decision given do not relate either to fitness or suitability of the writ petitioners. The question directly in issue was the specific rule making them eligible/ineligible for being considered for promotion or for excluding them from consideration for promotion. This question squarely falls within the exclusive jurisdiction of the Service Tribunal. "
9. The above said judgment is not directly applicable to the facts of the present case. Petitioners Nos. 2 to 11 had already been promoted under old rules of 1954 and their names existed on the confirmed Girdawar Kanungos list. Petitioner No. 1, who is F.Sc. Has further been promoted to the regular post of the Naib-Tehsildar. Appeal against his promotion was dismissed by Commissioner on 16-2-1988. Petitioners Nos. 12, 13 and 14 were promoted as ad hoc Girdawar Kanungos. The instant case does not relate to the consideration of eligibility/ineligibility for promotion. It is in fact a case of reversion of petitioner promoted under old rules of 1954 by applying the fresh rules of 1990.
Whether same could be done or not is another question not under adjudication for the the being.
The case of Imam Bakhsh related to the consideration of eligibility/ineligibility of the candidates under old rules of 1954 and not under new rules of 1990 and the appellants before the Supreme Court: were affected under the order of the High Court who were neither party before the High Court nor before the Commissioner, whose order was set aside by the High Court in exercise of Constitutional jurisdiction whereas in the present case the petitioners have been reverted to the post of Patwaris after a long the under new rules of 1990. Admittedly petitioner No. 1 was Naib- Tehsildar, who could not be reverted to the post of Patwari by respondent No. l Commissioner being the competent authority and the remaining petitioners Nos. 2 to 11 being confirmed Kanungos without affording opportunity of hearing or giving show-cause notice could not be demoted.
Similarly, petitioners Nos. 12, 13 and 14 though ad-hoc Kanungo Girdawars were still entitled to the right of hearing. The impugned order demoting the petitioners is violative of the principle of natural justice "none to be condemned unheard". On this ground alone the impugned order is without jurisdiction and this Court can entertain the instant petition.
10. The bar of jurisdiction of superior Courts was examined by the Supreme Court in Pir Sabir Shah's case referred above:- "Even if the impugned at or action has been protected by Constitutional provision by ouster clause, the superior Courts still have the jurisdiction to interfere within the three categories of cases, namely, without jurisdiction, coram non judice and mala fides."
11. Similarly, the Hon'ble Supreme court in the case of Malik Hayat while dealing with the provision of Article 212-B (Special Courts for Speedy Trials Act (IX of 1992) observed:- "-----As a rule, no interference is to be' made with judgment and proceedings of the Supreme Appellate Court but as an exception to the rule interference can be made only in extraordinary cases involving question of jurisdictional defect when proceedings in that forum become coram non judice."
Yet in another case of Islamic Republic of Pakistan (1992 SCMR 1309) while dismissing the petition against the order of the High Court it was observed: "... Order of respondent's dismissal from service was mala fide, coram non judice and without jurisdiction being correct on basis of record, leave to appeal was refused. "
12. High Court has also held in the case of Muhammad Aslam and others referred above: "Services of civil servant were terminated forthwith without issuing them any show-cause notice, despite it was admitted on part of Department that they were doing their duties to the entire satisfaction of Authorities concerned--Civil servants having been condemned unheard, order of termination of their services could not sustain in view of the fact that no adverse order could be passed against a person unless he was heard by Competent Authority."
The order of termination being violative of principle of natural justice was declared void.
13. Admittedly, petitioners were neither heard nor any notices were issued to them prior to the passing, of impugned order. The above judgments relied upon by the learned counsel for the petitioners sufficiently show that under Article 199 of the Constitution this Court is competent to quash the orders which are without jurisdiction, coram jun judice and mala fide. Respondent No. 1 has no authority to revert petitioner No. l by to steps from Naib-Tehsildar to Patwari as his appointing authority is Commissioner and not respondent No. 1. Respondent No. 1, levelled a stigma of use of political influence against petitioners without issuing any show cause notice or asking any explanation from them. Such an order without hearing could not be passed under the law.
14. Yet another reversion matter of P.I.A. Employee reported in-Mrs. Anisa Rehman v. P.I.A.C. And another 1994 SCMR 2232 went to the Supreme Court and their Lordship alter discussing all relevant law remanded the case to the authority for affording of opportunity of hearing to the appellant therein. The relevant-observation of the Supreme Court is as under:- ------there is judicial consensus that the Maxim audi alteram partem is applicable to judicial as well as to non ,judicial proceedings. The above Maxim will be read into as a part of every, statute if the right of hearing has not been expressly provided therein. In the present case respondent No. 1 in its comments to the writ petition (at page 41 of the paper book) admitted the fact that no show- cause notice was issued to the appellant nor she was heard before the impugned order, dated 6th August. 1991 reverting her to Grade-VI from Grade-VII was passed. In this view of the matter there has been violation of the principles of natural justice. The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise. The fact that there are no statutory service rules in respondent No.1 Corporation and its relationship with its employees is of that Master and Servant will not negate the application of the above Maxim audi alteram partem.
The above view, which we are inclined to take is in consonance with the Islamic Injunctions as highlighted in the case of Pakistan and others v. Public at Large (PLD 1987 SC 304), wherein, it has been held that before an order of retirement in respect of a civil servant or an employee of a statutory Corporation can be passed, he is entitled to be heard."
15. In view of the facts that the petitioners were not afforded any opportunity of hearing at the the of passing of impugned order adversely affecting them the said order is clearly in violation of principle of natural justice. The promotion of some of the petitioners was made under old Rules of 1954 and now by applying new Rules of 1990 they have been illegally reverted. Rights accrued to them under old rules could not be taken away arbitrarily without affording them opportunity of hearing. The law laid down by the Supreme Court and the High Court in the judgments referred above entitle the petitioners to show-cause notice against impugned order. The impugned order tested on the touch stone of principle of natural justice is clearly without jurisdiction. The petition is accordingly allowed. The impugned order is declared wholly without jurisdiction and consequently of no legal effect. There shall be no order as to costs.