' This judgment shall decide the Writ Petition No, 17807 and Writ Petition No,19733 of 2000, as they involve common question.
2. The petitioners in these writ petitions were employees of Corporate Law Authority. The respondent Corporation was established under section 3 of the Securities and Exchange Commission of Pakistan Act, 1977, which was promulgated on 26-12-1997. Under the provisions of section 43(e) of the said Act no officer, employee, servant or any other person holding any post in connection with the affairs of the Authority (Reference is Corporate Law Authority), shall have any right or lien for appointment to any post in the respondent Commission. The petitioners were consequently informed vide similar worded letter dated 3-5-2000 requiring them to hand over the charge of their respective posts immediately to the Supervisory Officer. A similar worded corrigendum was issued on 11-5-2000. Feeling aggrieved the petitioners have filed these writ petitions. Learned counsel for the petitioners contends that the said impugned letters have been issued without giving chance of hearing to the petitioners and that the letters do not contain any reason as to why the petitioners have not been found suitable for employment in the Commission.
Learned counsel for the respondent on the other hand contends with reference to said section 43(e) that the petitioners are not possessed of any right to claim employment with the respondent Commission.
3. I have gone through the copies of several documents appended with these writ petitions. I deem it proper to reproduce para.2 of letter dated 3-5-2000 also para. 2 as corrected in letter dated 11-5- 2000. Letter dated 3-5-2000 para.2 reads:-- "Your case for appointment as an employee of the Commission was considered along with other employees of the former Corporate Law Authority, in terms of clauses (e) to (h) of section 43 of the Securities and Exchange Commission of Pakistan Act, 1997. After going into the record of your service, conduct, performance and also having regard of the objects for which the Securities and Exchange Commission of Pakistan has been established, you have not been found suitable, for appointment as an employee of the Commission."
' Para. 2 as corrected in Corrigendum dated 11-5-2000 reads:-- "Your case for appointment as an employee of the Commission was considered alongwith other employees of the former Corporate Law Authority, in terms of clauses (e) to (h) of section 43 of the Securities and Exchange Commission of Pakistan Act, 1997. Keeping in view the objects for which the Securities and Exchange Commission of Pakistan has been established, you...Have not been found suitable for appointment as an employee of the Commission."
' I have felt the need to reproduce the relevant portions of the above documents because to my mind these do not disclose any reason as to why the petitioners were not found suitable for the appointment as employees of the Commission. It certainly makes interesting reading if the original para.2 and corrected para. 2 is read in juxtaposition to each other. Whereas original para.2 gives impression that record of the service, conduct and performance of the concerned employees has been gone into to determine their suitability for the appointment, the Corrigendum informs that the said words i,e," after going into the record of your service, conduct, performance" were inserted in the original letter "inadvertently" and are being deleted.
4. Since it leaves one wondering as to what other possible criteria could have been adopted by the respondent Commission in the matter of employment of the petitioners if not the record of service, conduct and performance, I was constrained to pose the said question to the learned counsel for the respondent Commission. After some deliberation the learned counsel expressed his inability to answer the question as posed; however, he submitted that the said para.2 has been corrected in order to ensure that the letter which for all purposes is a declaration that the petitioners are not fit to perform the duties they are already performing, not to leave any such stigma.
5.I am afraid, I find it rather hard to accept the said explanation of the learned counsel. To my mind the plain reading of the Corrigendum dated 11-5-2000 shows that it is admission on the part of respondent Commission that the decision had been taken without any application of mind which is not countenanced by the provisions of the very Act under which the respondent Commission has been established. Section22(3) of the said Act provides in mandatory terms as follows:-- "(3) The Commission shall, in adjudicating upon the rights of any person whose application on any matter it is required to consider in the exercise of any power or function under this Act, give the reason for its decision after giving the person concerned a personal hearing, in addition to any written applications or submission which may be required to be made."
' It may further be added here that the Federal General Clauses Act, 1897 has since been amended.
Section 24(A) has been added by section 2 of General Clauses (Amendment) Act, 1997, in following terms:- "24.A.Exercise of power under enactments.(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, officer or person such power shall be exercised reasonably, fairly justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
' I find that respondent Commission has failed to act either in accordance with section 2(3) of the Securities and Exchange Commission of Pakistan Act, 1997, or the said section 24(A) of the General Clauses Act, 1897.
6. I am in no doubt that notwithstanding provisions of section 43(e) of the said Act it is the right of the petitioners to be considered in accordance with law for the appointment as an employees of the Commission. The very exercise undertaken by the respondent Commission resulting in issuance of said letters bespeaks for my said observations.
7. For all that has been discussed above, both the writ petitions are ALLOWED allowed . The impugned letter dated 3-5-2000 as corrected by the Corrigendum dated 11-5-2000 is declared to be illegal and without lawful authority, so far as the present petitioners are concerned. This order, however, shall not debar the respondent Commission from making an order strictly in accordance with said provisions. No order as to costs.