IHSANUL HAQ CHAUDHRY, J.--It is proposed to decide Writ Petitions Nos.935/98, 15714/97, 15710/97, 15715/97, 15716/97, 5717/97,15723/97,14826/97,15732/97, 15733/97,15735/97,15736/97, 15748/97,14949/97,15750/97, 15752/97,15755/97, 15756/97,15758/97,15759/97,15760/97,15761/97,15743/97,15170/97,15890/97,14825/97,15864/97,16000/97,15713/97, 15719/97,15751/97,15757/97,15709/97,15739/97,15753/97,15753-A/97,14611/97,14950/97,15708/97, 15721/97 and 16001 of 1997 by this single judgment as the legal and factual controversy is the same.
2. The brief facts giving rise to this writ petition are that petitioner was appointed as Gunman vide order dated 7-6-1995. His services were terminated along with others vide impugned order dated 18-6-1997.
3. Learned counsel for the petitioner argued that the petitioner was appointed by the Recruitment Committee constituted vide common Ciruclar dated 8-2-1995 appended as Annexure-H with the writ petition. It was explained that on 24-4-1990 Export Tax Zila Council, 1990 and the rules were enforced. The directions were issued on 2-5-1990 to implement the above law and rules. It was on 11-8-1990 that schedule containing guideline was issued. It was decided on 18-4-1992 to appoint the staff for other recovery of the Zila exit tax and accordingly Punjab Local Government (Establishment) Rules were issued and the schedule was amended in 1995. Thereafter, the applications were invited through advertisement in newspaper dated 25-3-1995. The appointment of the petitioner was made by the Committee constituted under Government notification. The grievance is that Director-General (Inspection) Local Government and Rural Development, Punjab pointed out that the appointments of the petitioner and others made in 1995 were illegal, in violation of the rules laid down by the Hon'ble Supreme Court of Pakistan. Thereafter, respondent No,1 proceeded to terminate the services of petitioner and others. It was argued that the appointment was made strictly in accordance with law, rules and decision of the Hon'ble Supreme Court of Pakistan. Moreover, the Director-General had no authority to object to the appointments. It was argued that the impugned order has been passed without hearing the petitioner or giving him an opportunity to explain his position, therefore, the order is not only against law and rules but also against the principles of natural justice.
4. On the other hand, learned Advocate-General, Punjab argued that according to rules all appointments are to be made by the Selection Committee' as constituted under the Punjab Local Government Ordinance. It was added that the 'Recruitment Committee' which usurped the jurisdiction of 'Selection Committee' was notified by the Government for the appointments in Government Departments, autonomous bodies and not Local Councils. It was argued that the petitioner was member of the Local Council, therefore, for the purpose of Punjab Service Tribunal was civil servant. In this behalf reference is made to section 44 of the Local Government Ordinance and reliance was placed on Mushtaq Ahmad v. Government of Pakistan (1988 PLC (C.S.) 488).
5. It was argued that the appointment was irregular, therefore, it did not create a vested right and the respondent has inherent jurisdiction to remove the petitioner from the service on account of irregularity. It was maintained that the wrong action could be corrected any moment. In this behalf reliance was placed on The Engineer-in-Chief Branch v. Jalaluddin. (PLD 1992 SC 207) and Jameel Ahmed v. Deputy Commissioner, Bahawalpur (1998 PLC (C.S.) 448). It was added that this will not the case of promissory estoppel and the limitation is not involved. In this behalf reliance was placed on Pakistan v. Salahuddin (PLD 1991 SC 546).
6. It was argued that respondent No,1 had jurisdiction under section 20 of the General Clauses Act to resind the order of appointment of the petitioner. It was argued that writ is not to be issued because the Government is curing an illegality. It was added that the service during probation period are liable to be dispensed with any moment without a stigma and writ is not competent. It was argued that in case confirmation order is not passed then the period of probation would automatically be extended by one year.
7. It was next argued that the order of termination is proper and legal because appointment letters were issued even without checking the eligibility of the petitioner and others. The manner in which the appointments were made go a long way to show the mala fides. It was argued that in such cases notice or hearing is not necessary. In this behalf reliance was placed on the case of Mushtaq Ahmad (supra). It was explained with reference to the arguments on behalf of the petitioner that only the staff for the recovery of the exit was recruited, that it was falsified by the facts of record that all sorts of appointments were made recklessly and without justification. The result was that financially respondent No,1 was reduced to the state of bankruptcy.
8. Mr. Naseer Ahmad Bhutta, Advocate argued with reference to Notification dated 13-11-1976 the Civil Service Rules of the Government of the Punjab were made applicable to the employees of the Local Councils and Zila Councils in the Punjab with immediate effect. It was argued that under Rule 12 of the Municipal Councils Rules, the term of probation would be deemed to be extended. In this behalf reliance was placed on (PLD 1973 SC 393). It was argued that neither there was any mala fide nor stigma was attached to the termination of service, therefore, the writ was not competent. It was the duty of the Director-General (Inspection) to note the irregularities and sent the same for information and action to the Government and copy thereof to the Local Council who shall report the action taken to the Government which may issue directions as deemed necessary. In this behalf reference is made to section 155 of the Punjab Local Ordinance, 1979 (hereinafter to be referred as 'Ordinance of 1979'). It was added that Government is also empowered under section 157 of the Ordinance of 1979 to issue direction to take action within the specified period and order inquiry suo motu or on an application by any person under section 158 of the Ordinance, 1979.
9. Learned counsel for the petitioner while summing up the arguments submitted that the appointment was made under section 42 of the Ordinance, 1979 and not under section 44 of the Ordinance, 1969 which was not applicable. It was added that the petitioner was servant of Zila Council in view of provisions of section 42 of the Ordinance, 1979. It was argued that the appointment rules referred to by Mr. Naseer Ahmad Bhutta, Advocate were not relevant because these dealt with the Municipal Committees and not Zila Councils. It was argued that the 'Recruitment Committee' as notified by Government and 'Selection Committee' were manned by the same officials, therefore, it made no difference as to which of two Committees made the appointment of the petitioner.
10.Learned Advocate-General while summing up the arguments submitted that the collection of exit tax was made through Contractor, therefore, there was no justification to make these large number of appointments.
He explained that it was bedsides the point that it was only used as a pretext as was clear from the fact that the appointments of large number of employees were made who had nothing to do with the collection of the exit tax by the Zila Councils. It included appointments of dispensers etc. 11.I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of law and precedents. The Government has constituted 'Selection Committees' under the Punjab Local Government Ordinance. The Committee consists of Chairman of the Local Council, Chief Officer/Secretary of the Local Council and Principal Officer of the concerned department if any, for technical advAe and assessment of the fitness of the candidate with reference to job requirements. All the appointments are to be made by this Selection Committee. The Government also constituted 'Recruitment Committees' for the appointments in the Government departments and autonomous bodies for Gujranwala it consisted of Sh. Javed Sarwar, Deputy Commissioner, Gujranwala (Chairman), Mr. Salam Sher Afgan Khan, A.D.C. (G), Gujranwala (Secretary/Member), Ch. Zubair Hussain and Chief Officer, Zila Council, Gujranwala. This Committee had no jurisdiction or authority to make appointments in the Local Council. It seems that Deputy Commissioner being all powerful usurped the jurisdiction of selection process. Learned counsel for the petitioner argued that after the dissolution of the Local Councils both the Committees were manned by the same members. This argument is utterly misconceived because as per Punjab Local Councils Business Rules, 1980 framed under sections 36, 37 read with section 167 of Ordinance, 1979 no appointment and promotion shall be made except on the recommendation of the Selection Committee. The constitution of the Committees has been given above. The argument is factually incorrect. The justification rendered for the large scale appointments is that in order to coup with the recovery of exit tax these appointments were made.
This is again factulaly incorrect. The perusal of the list even filed by the learned counsel for the petitioner shows that it included 5 Naib-Qasids, 5 Gunmen, 3 Vaccinators and 3 Dispensers. The dates of appointments make the whole affair doubtful. Director-General (Inspection) pointed out these irregularities and sent the observations for information and necessary action. The objection that the Director-General (Inspection) has no authority is misconceived and Mr. Naseer Ahmad Bhutta, Advocate appearing on behalf of the respondents has rightly referred to sections 155 and 157 of the Ordinance of 1979. Besides this the Government is competent to order inquiry in the affairs of a Local Council and issue directions under section 158 of the Ordinance of 1979.
12.Mr. Ashtar Ausaf Ali, learned Advocate-General was right to argue that the appointments being irregular could not create a vested right. The action could be corrected any moment. In this behalf he has rightly referred to cases of Jalal-ud-Din, Jamil Ahmad and Salah-ud-Din (supra).
In this behalf I may refer to cases of Ghulam Murtaza v. Headmaster Ch. Inayat Ullah (1988 PLC (C.S.) 274) and Aziz Ahmad v. Chairman, Board of Intermediate and Secondary Education, Gujranwala (1997 PLC (C.S.) 356).
The decision in case of Aziz Ahmad (supra) was confirmed by the learned Division Bench vide judgment dated 3-6-1996 passed in I.-C.A. No, 182 of 1996 and incidently the judgment was written by me. The relevant portion reads as under:-- "2. The learned Single Judge in Chamber has clearly held that the Recruitment Committee was to be constituted as per Notification dated 17-3-1995 while the Committee which proceeded to interview the candidates was constituted as per letter dated 4-4-1994, which had been superseded and was not in line with the statute. There is nothing wrong with this reasoning."
13. The matter can be looked from another angle that petitioner having been appointed illegally cannot question the correction process because it B would amount to perpetuate the irregular and illegal action of the Selection Committee. In this behalf learned Advocate-General has rightly referred to Province of the Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) and Jameel Ahmed v. Deputy Commissioner, Bahawalpur (1998 PLC (C.S.) 448). Learned Advocate-General has further argued that the principle of locus poenitentiae in the circumstances would not be applicable. In this behalf he has rightly referred to Darayus Pestonji v. Nam Singh (1998 CLC 921). Learned Advocate-General rightly argued that the doctrine of promissory estoppel is not applicable in the present case. In this behalf he has referred to Pakistan v.
Salahuddin (PLD 1991 SC 546). Even otherwise 1 c respondent No,1 had jurisdiction under section 20 of the General Clauses Act to rescind the order of appointment of the petitioner. The appointment was made on 7- 6-1995 and even thereafter while the services were terminated on 18-6-1997. There is nothing on record to show that the petitioner was confirmed, therefore, probation period would deemed to have been extended by one year. This way the termination was during the probation period. The same being without stigma, therefore, cannot be challenged through Constitutional petition. In this behalf reliance was placed on Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan (PLD 1974 Supreme Court 393) and it is suffice to refer to here the judgment in the case of Syed Tatheer Hussain v. Governor of the Punjab (1988 PLC (C.S.) 270).
14. It is interesting to note that the appointments were made in such a irregular and wreckless manner that even the Appointing Authority did not determine the eligibility of the candidate. The moment the order of appointment is declared illegal, the other acts are automatically rendered illegal and ineffective and superstructure trembles down the moment foundation disappeared. In this behalf reference can be made to Messrs Munkoc Corporation v. Province of Punjab (1990 CLC 1791).
15.Now coming to the question whether in these circumstances it is proper to issue writ. The order of appointment is illegal assuming that the petitioner is not to be blamed for the illegality but the question remained whether such orders should be protected and illegality perpetuated. The rule laid down by the Hon'ble Supreme Court of Pakistan is that illegal and ill-gotten benefits are not to be protected and illegalities should not be perpetuated by Courts whether in suit or in Constitutional jurisdiction. In this behalf reference can be made to Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner etc. (PLD 1973 SC 236), Wali Muhammad v. Sakhi Muhammad (PLD 1974 SC 106), Syed Nazim Ali etc. v. Syed Mustafa Ali etc. (1981 SCMR 231), Messrs Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal 1986 SCMR 1071 and Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166), Syed Ali Shah v. Abdul Saghir Khan Sherwani (PLD 1990 SC 504), Nagina Cotton Mills Ltd. v. Pakistan (1990 CLC 1337) and G.M. Malik, Chairman, Board of Intermediate and Secondary Education, Faisalabad v. Province of Punjab (1990 CLC 1783).
16. The anxiety of the petitioner is to protect illegal and irregular order in his favour. The same is of the spice as noted by the Hon'ble Supreme Court in the case of Syed Raunaq Ali (supra). The same are not to be protected as it would amount to perpetuate the illegality. The respondents acted illegally to make the appointments. This illegality surfaced with the report of Director-General (Inspection), Local Government and Rural Development and the respondent proceeded to rectify the illegality. It is against public welfare, which is a supreme law, to afford any relief in Constitutional jurisdiction against such corrective orders. This Court is vested with the powers to decline the relief. In this behalf reference may be made to recent judgment of the Hon'ble Supreme Court reported as Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan (1998 SCMR 1464).
17. The upshot of this discussion is that this writ petition is dismissed with no order as to costs.