Upholding the impugned orders shall extinguish a lot of burning stoves and render scores of kitchens cold; maintaining the impugned orders shall snatch away bread and butter 'from hundreds of already underfed children; dismissing the present petitions shall add to the already alarming situation of unemployment; and dismal of the present legal challenges shall exacerbate and fuel the already delicate and precarious social equilibrium. Such passionate pleas based on personal hardships and adverse social effects have inter alia been raised in the following Constitutional. petitions which have been heard and are being disposed of together as common questions of law and fact are nvolved therein; Writ PetitionsNos.866, 945, 961, 962, 973, 975, 976, 1049, 1102, 1170, 1175, 1187, 1188, 1192, 1193, 1263, 1264, 1436, 1463, 1514, 1580, 1644, 1658, 1837, 1894, 1905, 1982, 2033,2036, 2275, 2400, 2401, 2457, 2460, 2523, 2571 and 8370 of 1997.
2. The necessary facts giving rise to these petitions are that between the years 1993 and 1996 the petitioners in all these writ petitions were respectively appointed as Health Technicians, Communicable Diseases Control Supervisors, Sanitary Inspectors, Medical Technicians, Vaccinators, Ward Cleaners, Homeo Doctors (Hakeem), Homeo Dispensers, Lady Health Visitors, Dispensers (Dawasaz), Naib Qasids, Junior Clerks and Cooks by the Department of Health.
Government of the Punjab in Basic Pay Scales 1 to 15. Having, thus, become civil servants the petitioners were assigned respective duties in the field, Rural Health Centres, hospitals and in the offices of the Medical Superintendents, District Health Officers and Deputy District Health Officers, etc. Little did the petitioners know that misfortune was round the corner and their dreams of a secure and stable future was going to be short-lived. On 24-11-1996, upon a direction from the Chief Minister of the Punjab, instructions were issued by the Secretary to the Government of the Punjab, Health Department, Lahore to the effect that all appointments made on the basis of political recommendations and in violation of the relevant rules and procedure were to be terminated. Consequently, necessary directives were issued in that regard by the Director Health Services, Multan on 19-1-1997 and 25-1-1997. Resultantly, separate and individual orders were issued by the relevant authorities denitrifying the petitioners' appointments and terminating their service. Such termination of their service was assailed by the petitioners before this Court through these writ petitions most of which were admitted to regular hearing and stay orders were issued in favors of the petitioners. All these petitions have come up for hearing today.
3. I have heard the learned counsel for the parties at some length and have also gone through the documents annexed with the present petitions, the comments submitted by the respondents and the record of the petitioners' appointments available with the respondents.
4. It has been argued by the learned counsel appearing for the petitioners in all these writ petitions that the petitioners have been condemned unheard inasmuch as no notice was issued or an opportunity of hearing afforded to the petitioners before passage of the impugned orders of termination of their service. Thus, according to the learned counsel for the petitioners, the cherished principle of audi alter am partum was flagrantly violated in that regard rendering the impugned orders void ab initio. The passing of an omnibus instruction, issuance of generalized directives and service of cyclostyled individual orders terminating the service of scores of civil servants have also been taken serious exception to by the learned counsel for the petitioners.
According to the learned counsel for the petitioners these cases were classic examples of directed exercise of jurisdiction by' the competent authorities which was clearly illegal. It has also been argued that the petitioners in fact qualified on merit and eligibility for the posts on which they had been appointed and, therefore, the impugned orders were factually as well as legally misconceived and untenable. It has been maintained that the petitioners had been performing their respective duties efficiently for years after their appointment and had attained permanent status in their posts and, therefore, it was too late in the day for the respondents to retrace their steps 'and throw out the petitioners from their service. The principle of locus penitential has been pressed in that regard, It has further been argued that others placed similarly had been treated differently by the respondents exposing manfest discrimination against the petitioners. It has lastly been submitted that the impugned orders have caused grave injustice to the poor petitioners. The passionate pleas raised in this regard have already been recorded in the earlier part of this judgment.
5. As against that the learned Assistant Advocate-General appearing for the respondents has argued that the impugned orders of termination of service of the petitioners pertained to terms and conditions of the petitioners' service and by virtue of the ousting provisions of Article 212 of the Constitution of Pakistan, .1973 this Court could not entertain the present writ petitions filed under Article 199 of the Constitution. It has also been, argued by him that the comments submitted by the respondents and the record of the petitioners' appointments clearly established that the petitioners had secured their entry into civil service through political recommendation and backdoor during a ban on appointments; the relevant posts were not even in existence at'the relevant time; the said posts were never advertised in the press; the regular procedure for appointment was not adopted in the petitioners' cases; no recruitment policy was followed in that regard; and in most of the cases jobs were obtained by the petitioners through downright bribery and bending of the normal process. It has lastly been submitted by the- learned Assistant Advocate-General ' that the petitioners were not possessed of the requisite qualifications for the jobs dished out to them and, therefore, the petitioners could not lay a legitimate claim on the discretion of this Court even if available.
6. After hearing the learned counsel for the parties and going through the record I have no hesi.ation in concluding that all these writ petitions are not maintainable before this Court. It has not been disputed by the petitioners that at the relevant time they were civil servants and the impugned orders of termination of their service pertained to terms and conditions of their service. It has, however, been argued by the learned counsel for the petitioners that the 'impugned orders were based upon determihation of fitness or otherwise of the petitioners for appointment to a post or to hold a particular post and, therefore, by virtue of proviso (b). to section 4(1) of the Punjab Service. Tribunals Act, 1974 the petitioners could not prefer an appeal against the impugned order before the Punjab Service Tribunal. Thus, according to them, the ousting provisions of Article 212 of the Constitution were not attracted to the cases of the petitioners and the present writ petitions were maintainable. I am afraid this argument, although apparently attractive, does not have much substance. On the face of it this argument blurs up the distinction between "fitness" and "eligibility" which are two judicially recognizend distinct and separate concepts. It is settled law that the former pertains to performance of a civil servant during his service whereas the latter concerns the requisite terms and conditions as well as qualifications of a civil servant. A reference in this respect may be made to the cases of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 and Syed Badrud-ud-Din v Government of N.-W.F.P. PLD 1994 SC 345. In the present cases the petitioners had admittedly been thrown out of service on the question of their "eligibility" for appointment in the first place and not on the issue of their "fitness" to continue with their service.
The abovementioned proviso (b) to section 4(1) of the Punjab Service Tribunals Act, 1974 applies only to the cases of determination of "fitness" or otherwise and not to those of "eligibility". Thus, I have not been impressed by the argument built upon proviso (b) to section 4(1) of the Punjab Service Tribunals Act, 1974 for the purpose of canvassing maintainability of the present writ petition.
7. For what has been discussed above it is held that all these writ petitions are not maintainable before this Court and the same are hereby dismissed for want of jurisdiction. There shall be no order as to costs. It goes without saying that the petitioners shall be at liberty to approach any other forum having jurisdiction in the matter and all the pleas raised by them on the merits of their cases shall be available to them being canvassed thereat.
8. Before parting with judgment I would like to observe something about the passionate pleas raised by the petitioners noticed in the opening part of this judgment. All the said pleas appeal to the conscience of the Court and are necessarily referable to the discretion available to the Court. It is by now universally acknowledged that writ jurisdiction of this Court 'is discretionary-in nature.
Some of the settled principles regarding the scope of such discretion are that the discretion of this Court may not be exercised in aid of injustice or for retention of ill-gotten, gains or in favors of a person coming with unclean hands or the same may not be exercised for setting aside even a void order/action if the ends of justice so require. However, it must be borne in mind that, this direction comes into play only when on the merits of a given case a case is made out for issuance of a writ by this Court but in the exercise of its discretion the Court may refuse to interfere in the matter on consideration of the larger questions of justice, equity and good conscience. Such discretion is surely not available to declare something to be without lawful authority and of no legal effect if otherwise a case is not made out on the basis of a jurisdictional or legal infirmity. in \ the impugned order/action. Thus, it must be clearly understood that in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution this Court has a discretion to issue or not to issue a writ where a case is otherwise made out for issuance of a writ on the merits of the case but this Court has 'C no jurisdiction to issue a writ in its' discretion where otherwise no case is made out on -merits for issuance of a writ. It would be preposterous to maintain that this Court has the discretion to declare something to be without lawful authority and of no legal 'effect if the same is legally not so. Looked at in this backdrop the passionate pleas of the petitioners in these cases based on personal hardships and adverse social effects could not persuade, this Court to exercise jurisdiction or discretion in their favors where none existed in the first place. If mere sympathy for a litigant's cause is allowed to confer jurisdiction on a Court then the same would be a. sure recipe for judicial' anarchy which this Court resolutely loathes promoting.