' MUHAMMAD MOOSA K. LEGHARI, J.---This petition is being disposed of at Katcha Peshi stage as the matter has been argued at length and a short point is involved,
2. Through this petition, the petitioners who are the employees of respondent No,1 District Council Larkana and serving in various grades from 1 to 5 have prayed for grant of following relief:
(i) Direct the respondent No,1 to pay salaries to the petitioners since 1-6-1998 till today and onwards.
(ii) Restrain the respondent No,1 from terminating/dismissing the petitioners from their services and take any adverse action without due course of law.
(iii) Award costs.
3. The facts of the case in brief are that the petitioners claim to have been appointed against the dear vacancies and had completed more than three years' service with the respondents. The respondent No,1 had earlier stopped payment of salaries to about 42 low-paid employees including the petitioners. Resultantly the petition bearing No,C.P.D. 104 of 1997 was filed. The respondents did not file the written objections/comments against the said Constitutional petition, which was disposed of vide order, dated 19-10-1998 as the respondent No,1 agreed to pay salaries to the petitioners in three instalments. The case of the petitioners is that they were paid salaries up to 3.1-5-1998. However, subsequently they were not made payment of salaries without assigning any reason, thus exposing the petitioners and their families, to starvation. According to the averments made in the petition, the other employees filed a petition No,D-55 of 2000 before this Court for the purpose of getting their salaries to which the respondent No,1 agreed to pay them salaries within one month and the said petition was also disposed of vide order, dated 24-3-2000.
The action of the respondent No,1 was alleged to be arbitrary, perverse and mala fide on the basis of grounds mentioned in the petition.
4. The respondents filed their parawise comments admitting therein that Constitutional Petition No,D-104 of 1997 was disposed of on 19-1-2000 as the parties have reached the compromise for payment of salaries from 1-1-1997 to 31-5-1998. It Was further admitted that the salaries were paid in three instalments as directed by this Court vide order, dated 19-10-1998. Thereafter the cases of the petitioners were referred to Government for termination of their services. It was further stated that after issuance of show-cause notice and fulfilment of all the codal formalities' the services of the petitioners were terminated on 22-1-2000. It was however asserted that the petitioners did not perform any duty from 1-6-1998 till the date of their termination. Apart from the merits it was contended that the petitions were barred under the provisions of Article 212 of the Constitution. The respondent No,1 also filed photostat copies of the certain documents which included office orders dated 22-1-2001 whereby the services of the petitioners were terminated w.e.f 1-6-1998.
5. We have heard learned counsel for the parties and also perused the record.
6. It has been vehemently argued by Mr. Abdul Ghafoor Bhurgari learned counsel appearing for respondent No,1 that the petitioners being civil servants had no locus standi to maintain the present petition. He further submits that the jurisdiction of this Court was specifically barred under the provisions of Article 212 of the Constitution as the relief claimed is in respect of terms and conditions of service of the petitioners. He next argued that the petitioners had an alternate remedy by filing service appeals before the Service Tribunal, wherein even mala fides of the termination older can be questioned. He further argued that the very appointment of petitioners was ab initio, void and therefore, the Constitutional jurisdiction could not be exercised to perpetuate ill-gotten gains. In support of his above submissions, he has relied upon the following case-law:--
(i) 2000 SCMR 1183.
(ii) 2000 SCMR 1783.
(iii) 2000 SCMR 907 at p.909.
(iv) PLD 1974'SC 106.
(v) 2000 SCMR 917.
7. On the other hand learned counsel for the petitioners has relied upon the judgment of Honourable Supreme Court dated 10th July, 2000 passed in Civil Petition No,167-K of 2000 in the case of the Administrator, District Council, Larkana v. Gulab Khan and others. Learned counsel has also placed reliance on the judgment reported in 2000 SCMR 556.
8. It has not been denied by the respondents that the petitioners were appointed in different grades in the District Council Larakana. It has also not been denied that they were appointed against clear vacancies and that they had put in more than three years' service. It has also been admitted that a certain number of employees have filed Constitutional Petition No,104 of 1997 before this Court which was disposed of vide order, dated 19-1-2000 on the basis of compromise whereby the respondents had undertaken to make payment of salaries to the petitioners in three instalments. It has also been admitted in the comments that the petitioners who were in the employment with respondent No,1 were issued show-cause notice and after observing all the codal formalities they were eventually terminated from service vide order, dated 22-1-2000. The said order along with the show-cause notices served upon the petitioners have been placed on record.
This fact itself is sufficient to show that the petitioners were in the employment of the respondents till the issuance of the orders of termination which are dated 22-1-2000. Since the orders of termination have been issued by respondent No,1 therefore, there is no weight in the averments made in the comments that the matter of termination of petitioners was referred to the Government as we find that the respondent No,1 himself was competent to terminate the services of the petitioners. The action of termination which was taken on 22-1-2000, therefore could have been taken at any moment after 1-6-1998 in accordance with the law. We find that the show-cause notices against the petitioners were issued as back as on 6-1-998 but the decision of termination was taken almost after two years. If the action was delayed by the respondents, the petitioners could not be penalized for the said act and cannot be deprived of their salaries. The petitioners are admittedly the employer of the respondents and if they allege/plead that the petitioners had not performed any ditty it was incumbent upon the respondents to have placed sufficient material on record to substantiate the said plea, as the entire record was in their possession. However, we do not find any material in proof of the contention that the petitioners had not performed any duty. If in case, the petitioners were not performing any duty they could have even been subjected to disciplinary action but there is nothing on record, or for that matter, nothing has been stated in the comments. In this view of the matter we are not inclined to accept the contentions that the petitioners did not perform any duty during the period from 1-6-1998 till the date of their termination. We have given our anxious consideration to the case-law cited by the learned counsel for the petitioners. There can hardly be any doubt with the proposition of law that a Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter concerning the terms and conditions of service, in view of the bar contained in Article 212 of the Constitution of Pakistan. It is also well settled that orders, even if mala fide, ultra virus and corum non judice fell within the ambit of Service Tribunals and jurisdiction of Civil Courts including the High Court is ipso facto ousted, in respect of enforcement of terms and conditions of service.
We are in humble agreement, and no doubt bound by the law which has been cited by the learned counsel for the respondent No,1 on this point. However, the relief chimed in the petition is c with regard to issuance of direction to the respondent No,1 to pay the salaries to the petitioners since 1- 6-1998; and the orders of termination have not been challenged in this petition. Learned counsel for the respondents has not been able to cite any law on the point that this Court, was, in any manner divested of the powers of issuing directions to the respondent No,1 who is a person performing within the territorial jurisdiction of this Court functions in connection with the affairs of the local authority to do a thing which he is required by law to do. We feel that there is no dispute with regard to the employment of the petitioners with the respondent No,1 till the date of their termination which is dated 22-1-2000 and therefore, this Court will be competent in issuing the directions to respondent No,1 to make payment of the salaries which the petitioners were entitled to get. Learned counsel appearing for the petitioners has placed on record an unreported judgment dated 10-7-2000 passed by the Hon'ble Supreme Court in Civil Petition No,167-K of 2000 (on appeal from the order, dated 10-3-2000 of the High Court of Sindh Circuit Court Larkana passed in Constitutional Petition No,D-24 of 2000). In the above-cited judgment, the Hon'ble Judges of the Supreme Court were pleased to observe as under: "In our considered opinion their salaries cannot be withheld on the ground that their appointment was illegal being made in violation of the relevant recruitment rules and in fact action should have been initiated against those who are sitting at the helm of affairs for such irregularities. The respondents cannot be held responsible in any manner whatsoever. In our view substantial justice has been done vide impugned order which cannot be disturbed on mere technicalities. The direction to withhold their salaries in fact suffers from inherent vice, it is void ab initio and cannot be given effect to. It is well-settled by now that the Principal object behind all legal formalities is to safeguard the paramount interest of justice---Legal percepts were devised with a view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fides. (2000 SCMR 556 at 561 C).
' In these circumstances we find absolutely no substance in this leave petition which is accordingly dismissed."
9. The above judgment was passed in the similar circumstances and the facts of the case were absolutely same.
10. Since the contention of learned counsel for respondent No,1 regarding the illegality in the appointments of the petitioners has already been discussed and answered by the Honourable Supreme Court in the above judgment, we do not feel it necessary to dilate upon the same.
11. Being fortified by the said judgment of the Hon'ble Supreme Court we direct the respondents to make payment of the salaries to the petitioners for the period from 1-6-1998 till the date of issuance of orders of termination viz. 22-1-2000. The salaries are to be worked out by the respondents and are to be paid to the petitioners after due verification within the period of four weeks from the date of receipt of this order.
12. In view of the fact that the respondents have already terminated services of the petitioners the relief prayed under subclause (ii) cannot be granted. Even otherwise we are of the considered view that, this relief falls' within the ambit of terms and conditions of service and therefore, cannot be granted in view of the bar contained in Article 212 of the Constitution. The petition is accordingly allowed in the above terms.