JUDGMENT CH. IJAZ AHMAD, J.- We intend to decide Intra Court Appeal No. 1102/99 and Intra-Court Appeal No. 8/2000 by one consolidated judgment having similar facts and law.
2. The brief facts out of which the present ICAs arise are that the appellants were appointed by the respondents vide their appointment letters on ad hoc basis. The respondents terminated the services of the appellants vide respective impugned orders of die respondent/department. Feeling aggrieved thereof, the appellants filed W.P. No. 6527/% which was dismissed by the learned Single Judge vide impugned judgment dated 15.12.1999, hence, the present Intra-Court Appeals.
3. The learned counsel for the appellants submits that the impugned orders of the Department are not sustainable in the eyes of law as the same were passed without providing personal hearing to the appellants. In support of his contention, the learned counsel has relied upon the following judgments:-
(i) 1994 SCMR 2232 Anis-ur-Rehman's case.
(ii) PLD 1987 SC 304 Pakistan and others Vs. Public at large and others. - The learned counsel of the appellants further argued that orders of appointment were issued by the respondents and the appellants joined their place of posting and principle of locus Poenitentiae is attracted and the respondents had no authority to terminate the services of the appellants. He further submits that action of the respondents is in violation of law laid down by the superior Courts. In support of his contention, he has relied upon the following judgment:-
(i) PLD 1970 Quetta p. 115, Jafar Ali Akhtar Yousafzai Vi. Islamic Republic of Pakistan and another.
The learned counsel further submits that if the appointments of the appellants are irregular or under the influence of politicians even then the respondents Ought to have afforded opportunity of personal hearing to the appellants before terminating their services. In support of his contention, the learned counsel has placed reliance upon the following judgments:-
(i) 1996 SGMR 1349 In re: Abdul Jabbar Memon and others
(ii) NLR 1996 Ser 120 Secretary to Government of NWFP and another Vs. Sadullah Khan.
The learned counsel further submits that the action of the respondents is also hit by Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 as the respondents terminated the services of the appellants while the respondents did not terminate the service of other employees who were also appointed on ad hoc basis along with the appellants.
4. The learned counsel of the respondents raised the preliminary objections that the Intra-Court Appeals are not maintainable as the appellants have alternate remedy against the original impugned orders of .Termination before the respondents by virtue of Regulation 9.9 of the 'Calendar of the Board of Intermediate and Secondary Education Faisalabad and, therefore, the Intra-Court Appeals are not maintainable by virtue of proviso of section 3(2) of the Law Reforms Ordinance, 1972. He further submits that the appointments of the appellants were made under the influence of the politicians, therefore, action of the respondent is valid in accordance with law and principle laid down by the superior Courts- The learned counsel has relied upon the following judgments:-
(i) 1998 SCMR 1452 Wazir Ali Khoja v. MCB am1 others
(ii) PLD 1998 SC 388 Benazir Bhutto Vs. President, of Pakistan (i.e) PLD 1999 SC 1106 Ms. Zeba Mumtaz. Vs. First Women Bank Ltd. And others.
The learned counsel further submits that no vested right has accrued to the appellants therefore, they have no case for the inter-refence of this Court. In support thereof, the learned counsel has placed reliance upon the following judgments:-
(i) PLJ 1975 SC 1 Muhammad Siddique Javid Chaudhry Vs. Govt, of West Pakistan.
(ii) PLD 1991 SC 1118 Mrs. Aqeela Asghar Ali and others Vs. Miss Khalida Khatoon Malik and others (i.e) PLD 1991 SC 35 Muhammad Iqbal Khokhqr and 3 others Vs. The Government of the Punjab etc. He further submits that the relationship between the appellants and the respondents is master and servant therefore, the writ petition was not maintainable before the learned Single Judge, In support of his contention, the learned counsel has relied upon PLD 1984 SC 170 (The Principal Cadet College Kohat Vs. Muhammad Shoab Qureshi).
He further submits that regulation of the respondents is declared by the Division Bench of this Court as non-statutory vide judgment passed in W.P. No. 23674/96. The learned counsel summed up his argument by contending that the respondents were justified to terminate the services of the appellants without issuing show-cause notice as per terms of the appointment letter.
5. The learned counsel of the appellants in rebuttal submits that Regulation 9.9 is not attracted in case of the appellants as is evident from the wording used by the legislature. "In the event of dismissal and disciplinary action" and the appellants were neither dismissed nor disciplinary action was initiated against them therefore, the Intra-Court Appeals are maintainable. He further submits that the appellants' case is fully covered under Regulation 9.12 and the respondents have no authority to terminate the services of the appellants before completion of the probation period.
6. We have considered the contentions of the learned counsel of the parties and have perused the record ourselves. We would like to decide the preliminary objections whether the Intra-Court Appeals are maintainable or not by virtue of proviso of Section 3(2) of the Law Reforms Ordinance, 1972 and to resolve this controversy, it is better and appropriate to reproduce the material facts in chronological order:-
(i) The appointment letter dated 9.8.1995 reveals that the appellants were appointed on ad hoc basis.
(ii) The impugned orders of termination also reveal that the services of the appellants were terminated by the competent authority as their services were no more required by the respondents.- (i.e) Regulation 9.9 of the Calendar of the Board of Intermediate and Secondary Education Faisalabad, Vol. 1 Page 61 is reproduced as under:- Appellate Authorities: In- the event of dismissal and disciplinary action, the person affected may appeal against the orders passed by the competent authority as follows:- Regulation 9.12 (2) of the said Calendar is reproduced as under:- On or before the confusion of probation of any employee, the Appointing Authority may either confirm such employee with effect from the date of appointment or if his work or conduct has in its opinion not been satisfactory, it may dispense with his service, if he has been recruited by direct appointment or may revert him to his former post, if he has been recruited otherwise; or, it may extend the period of probation.
The aforesaid facts and provision of Calendar clearly reveals that the appellants were appointed on ad hoc basis and their services were terminated without assigning any reason and ^without initiating any proceeding against the appellants under Efficiency and Discipline Rules hence the appellants have no right to i.e appeal before the appellate authority of the respondent/Board under Regulation 9.9. As cases of appellants fall' under Regulation 9.12(2) In this view of the matter, the preliminary objection raised by the learned counsel of the respondent has no force and the Intra-Court appeals are maintainable.
7. The respondents filed report and para were comments and took a stand that the appellants were appointed under the influence of the politicians contrary to the rules and regulations of the respondents. The appellants did not i.e any rejoinder to controvert the stance of the respondents that they were not appointed under the direction of the MPAs and MNAs as is evident from para 3 of the reply submitted by the respondents.
8. The learned Single Judge was justified to declare their appointments repugnant of Articles 4 and 18 of the Constitution of Islamic Republic of Pakistan. The Supreme Court of Pakistan has taken serious notice on such type of appointments in Re: Abdul Jabbar Memon and others (1996 SCMR 1349): The Hon'ble Supreme Court has observed as under:- "Steps shall immediately be taken to rectify so as to bring the practice in accord with the Constitutional requirement."
The Hon'ble Supreme Court has further approved and confirmed the aforesaid principle, in Munawar Khan's case (1993 SCMR 1287). The aforesaid proposition of law is also supported by the following judgments:-
(i) AIR 1995 SC 1293 Channabasavih's case
(ii) 1995 SCMR 999, Abdul Rashid Vs. Riaz-ud-Din and others.
Since the appellants got their appointment through back door on account of the influence of the public representatives contrary to the Rules and Regulations of the respondent, therefore, principle of locus Poenitentiae is not attracted in the present case as per principle laid down by the Hon'ble Supreme Court in Jalalud Din's case (PLD 1992 SC 207). The respondents were well within their right to terminate the services of the appellants by virtue of terms of letter of appointments issued to them by the respondents. Hence they have rightly terminated the services of appellants without providing any personal hearing to the appellants. In arriving to this conclusion, we are fortified by the following judgments:-
(i) PLD 1967 Lah 1005 Mumtaz Hussain Malik Vs. Govt, of Pakistan
(ii) PLD 1996 SC (Pak) 298 Abdul Karim Vs. West Pakistan.
(Iii) Judgment passed in C.P. No. 2100-L/98 on 21.4.2000 Liaqat Ali Shahid Vs. Govt, of Punjab.
The judgments cited by the learned counsel of the appellants are distinguishable to the facts and law as the appellants filed writ petition challenging the vires of the termination orders and the learned Single Judge refused to exercise discretion in favour of the appellants on the well-known principle i.e. He who seeks equity must come with clean "hands. The appellants did not approach this Court with clean hands as they got their appointment through back doors, therefore, the learned Single Judge was justified not to exercise discretion in favour of the appellants as per principle laid down by the Hon'ble Supreme Court in the following judgments:-
(i) PLD 1973 SC 236 Nawabzada Raunaq Ali's case.
(ii) 1998 SCMR 462 Rana Muhammad Arshad's case.
9. The learned counsel of the appellants have failed to point out any illegality or irregularity in the impugned judgment of the learned Single Judge and therefore, these Intra-Court Appeals have no merits and the same are hereby dismissed.