2013 P L C (C.S.) 370
[Balochistan]
Before Qazi Faez Isa, C.J. and Naeem Akhtar Afghan, J
MUHAMMAD JAN and 10 others
Versus
SECRETARY HEALTH DEPARTMENT GOVERNMENT OF BALOCHISTAN and 2
others
Constitutional Petition No.22 of 2012, decided on 19th December, 2012.
(a) Civil Servants Act (XIV of 1973) ---
----S. 4---Constitution of Pakistan Arts. 199 & 212 ---Constitutional petition ---Maintainability ---
Issuance of appointment letters in pursuance of approval granted by competent authority for
appointment of petitioners against vacant posts on basis of recommendations of Recruitment
Committee ---Withdrawal of such approval by competent authority while directing to readvertise
such posts ---Such controversy did not relate to terms and conditions of service of petitioners,
thus, remedy of appeal before Service Tribunal would not be available to them ---Bar contained
in Art. 212 of the Constitution, thus, would not restrain High Court from exercising its
jurisdiction under Art.199 thereof.
(b) Consti tution of Pakistan ---
----Art. 199 ---General Clauses Act (X of 1897), S.24 -A(2) ---Constitutional petition ---Civil
service ---Appointment ---Issuance of appointment letters in pursuance of approval granted by
competent authority for appointment of petitione rs against advertised vacant posts on basis of
recommendations of Recruitment Committee ---Withdrawal of such approval by competent
authority and submissions of joining reports by petitioners ---Validity ---Record showed that
Recruitment Committee had unanimo usly recommended petitioners on merits ---Such approval
had already been acted upon as petitioners had been issued appointment letters on its basis and
had submitted joining reports, when competent authority on fifth day of such approval had issued
impugned order without assigning any reason ---Appointment of petitioners on basis of such
approval had given them vested right, which could not be taken away after having been acted
upon ---Nothing was available on record either to show any bias, mala fide or favou ritism or to
disprove initial presumption of correctness attached to official act of Recruiting Committee
recommending petitioners ---Appointment of petitioners was not illegal as per the record ---
Petitioners had been condemned unheard ---Appointment orders of petitioners were still intact as
there was no order terminating their service ---Authority could withdraw impugned order before
same was acted upon, but not thereafter ---High Court declared impugned order as void and of no
legal effect while observing th at petitioners would not be entitled to receive pay for period
during which impugned order remained in field.
Peer Muhammad v. Government of Balochistan 2007 SCMR 54 ref.
Province of Punjab v. Sarwari Begum 2004 SCMR 279; Asjad Mahmood v. Federation
of Pakistan 2002 PLC (C.S.) 1161; Chairman Development Authority v. Sajjad Ahmed Sheikh
2004 PLC (C.S.) 1095; Syed Yousaf Ali Shah v. Administrator Municipal Corporation
Bahawalpur 2002 PLC (C.S.) 1451; Mumtaz Hussain v. D.M/D.C., Khairpur 1990 PCr.LJ 178 4
and Ghulam Muhammad v. Superintending Engineer 1998 PLC (C.S.) 87 rel.
(c) General Clauses Act (X of 1897) ---
----S. 24 -A(2) ---Provisions of S.24 -A of General Clauses Act, 1897 ---Scope stated.
Section 24 -A(2) of the General Clauses Act, 1897 regulates the exercise of powers by the
State functionaries. It recognizes the doctrine that where the statute confers powers to make any
order or give any direction to any authority, office or person, the same should be exercised
reasonably, fairly, justly and for advancement of the purpose of the enactment.
(d) Vested right ---
----Illegality could not create vested rights.
(e) Locus poenitentiae, principle of ---
----Applicability ---Scope ---Power of receding or going back on a decision would be available to
an authority only upto the time such decision had not been carried into effect.
Mumtaz Hussain v. D.M/D.C., Khairpur 1990 PCr.LJ 1784 and Ghulam Muhammad v.
Superintending Engineer 1998 PLC (C.S.) 87 rel.
Muhammad Kamran Mulakhail, Baz Muhammad Kakar and Ashraf Bazai for Petitioners.
Tariq Ali Tahir, Addl. A. -G. Assisted by Dr. Shah Nawaz R.M.O. Helpers Eye Hospital,
Quetta for Respondents.
Date of hearing: 6th December, 2012.
JUDGMENT
NAEEM A KHTAR AFGHAN, J. --- This order disposes of Constitutional Petition
No.22 of 2012, whereby the petitioners have claimed the following relief: ---
"(a) To declare that action of official respondents is transgressed of authority and is having no
legal effect being ab initio void.
(b) To declare that after issuing of appointment letter followed by joining reports services of
petitioners are governed by pr evailing laws of land therefore they cannot be removed from
services without adopting due process of law and/or petitioner being citizens of Pakistan
enjoying the protection of law to be treated in accordance with law, is their inalienable rights
which can not be denied by exercising powers of executive authority in arbitrary manner.
(c) To declare that in view of doctrine of locus poenitentiae the right of petitioners once
accrued cannot be withdrawn under the garb of exercising power of competent authori ty.
(d) To declare that approval of minutes of Provincial Recruitment committee vide Letter
No.SO -II(H)/1737/2011/29521, dated 29 -12-2011 still holds the field and impugned letter
No.SO -II(H)17 -37/2011/Nil, dated 2 -1-2012 in respect of withdrawing has be en issued without
lawful authority thus does not hold a field, having no legal affect being ab initio void.
(e) To direct the official respondents to refrain from their uncalled for whims and whishes
and refrain from illegal action and reactions like res training petitioners from entering into their
place of employment.
(f) Any other relief which may deem fit and proper may also be awarded."
2. Facts of the case are that after completion of all the codal formalities, the petitioners were
recommended by the Provincial Recruitment Committee ("Committee") for appointment in the
Helper Eye Hospital, Quetta against the vacant posts of BPS -1 to BPS -12. In this regard, the
minutes of the meeting of the Committee dated December 20, 2011 were approved by the
Com petent Authority (respondent No.1) vide letter dated December 29, 2011 in the following
words: ---
"The undersigned is directed to refer your letter No.1012 dated, 29th December, 2011 on
the subject noted above and to convey approval of the Competent Aut hority regarding
appointment of the candidates, who have been recommended by Departmental Recruitment
Committee, against the vacant posts of B -1 to B -12 in Helper Eye Hospital, Quetta, after
completion of all codal formalities."
In pursuance of the above approval, appointment letters were issued in favour of the petitioners
by the respondent No.3. The petitioners submitted their joining reports to the respondent No.3
Subsequently, vide impugned letter dated January 2, 2012, the respondent No.1 withdrew hi s
earlier approval for appointment of the petitioners in the following words: ---
"The undersigned is directed to refer to the subject cited above and to convey that
approval granted for appointments against the vacant posts of B -1 to B -12 vide this depa rtment
letter No.SO -11(H)17 -37/2011/ 29521 dated 29 -12-2011 is hereby withdrawn.
(2) The said posts may be re -advertised immediately."
3. The respondent No.1 submitted parawise comments stating therein that the unsuccessful
candidates contacted him wit h the plea that the process of test and interview was interrupted by
some influentials. It was further stated that the Medical Superintendent of the Helper Eye
Hospital Quetta namely Dr. Elahi Bakhsh (Chairman of the Committee/ respondent No.3) was
due to retire on December 31, 2011 and he finalized the orders in hurry on December 29, 2011.
The respondent No.3 filed para wise comments wherein it was stated that he simply
implemented the order dated January 2, 2012, of respondent No.1 being the Competent
Authority, but he did not stop the petitioners from entering in the premises of the hospital.
4. As the case was ripe for hearing, the same was admitted for regular hearing on December
6, 2012. Mr. Baz Muhammad Kakar, learned counsel for the petitioners stated that the
appointments of the petitioners were made on merits and apart from Medical Superintendent of
Helper Eye Hospital, being Chairman of the Committee, Deputy Director (Admin) Provincial
Healt h Directorate, Medical Officer Helper Eye Hospital and the Section Officer -II Health
Department, Civil Secretariat Quetta were the members of the Committee. The Chairman of the
Committee along with three members signed the merit list of each category and t here was no act
of favouritism or malpractice on the part of the Chairman. Learned counsel further stated that the
recommendation of the Committee was duly approved by the respondent No.1 on December 29,
2011, in pursuance whereof appointment letters were issued to the petitioners and the petitioners
submitted their joining reports, whereafter there was no occasion for respondent No.1 to
withdraw his earlier approval vide impugned letter without assigning any reason.
5. Learned Additional Advocate General (A.A. -G.), while contesting the petition stated that
the petitioners being appointed as government employees cannot invoke the constitutional
jurisdiction of this Court for redressal of their grievance in view of the bar of jurisdiction under
Article 212 of the Constitution. Learned A.A. -G. relied upon the case of Peer Muhammad v.
Government of Balochistan (2007 SCMR 54).
6. Perusal of the record reveals that the matter does not relate to the terms and conditions of
service of the petitioners, rather it relates to the validity/legality of the impugned letter issued by
the respondent No.1. Since the controversy does not relate to the terms and conditions of the
service of the petitioners as envisaged under Chapter -II of the Civil Servant Act, 1973, the
remedy of appeal under section 4 of the Service Tribunals Act, 1973 before the Service Tribunal
would not be available to the petitioners, therefore, the bar of jurisdiction under Article 212 of
the Constitution would not restrain this Court from exercising j urisdiction under Article 199 of
the Constitution. Reliance in this regard was placed on the case of Province of Punjab v. Sarwari
Begum (2004 SCMR 279). Reference was also made to the case of Asjad Mahmood v.
Federation of Pakistan (2002 PLC (C.S.) 1161). The judgment relied upon by the learned A.A. -
G. (2007 SCMR 54) is not relevant as in that case the matter of transfer/posting of the petitioner
as 'Director General Agriculture Extension' was held to be related to the terms and conditions of
a Government Servant falling within the exclusive jurisdiction of the Service Tribunal.
Therefore, the objection raised by the learned A.A. -G. is repelled.
7. The petitioners had applied to different posts of Assistant Computer Operator, Eye
Technician, O.T. Technici an, X -Ray Assistant, Lab Assistant, Storekeeper, Aya and Mali. The
applications were invited through an advertisement, a number of candidates applied for the posts
and separate merit lists were prepared for each post. Scrutiny of each merit list reveals th at the
petitioners belong to different regions of Balochistan, attained the highest marks on merit for the
respective post and were unanimously recommended by the Committee. Thereafter, the
respondent No.1 duly approved the minutes of the meeting/ recommen dation of the Committee
on December 29, 2011 on the basis whereof the respondent No.3 issued the appointment letters
of the petitioners and the petitioners duly submitted their joining reports. On the fifth day of the
approval of the recommendations, the r espondent No.1 issued the impugned letter, whereby his
earlier approval for appointments of the petitioners was withdrawn without assigning any reason.
The reasons stated in the para wise comments by respondent No.1 have not been mentioned in
the impugned letter. Nothing has been brought on record by the respondent No.1 to supplement
the contents of his para wise comments. And not a single application has been placed on record
by the respondent No.1 with regard to the alleged complaints by the unsuccessful candidates.
There is also nothing on record to tentatively displace initial presumption of correctness attached
to the official act of the Committee in recommending the petitioners. Nor is any bias, mala fide
or favouritism apparent from the record.
Section 24 -A(2) of the General Clauses Act, 1897 regulates the exercise of powers by the
State functionaries. It recognizes the doctrine that where the Statute confers powers to make any
order or give any direction to any authority, office or person, the same should be exercised
reasonably, fairly, justly and for advancement of the purpose of the enactment. Section 24 -A(2)
reads as under: ---
"(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 direction and shall provide a
copy of the order or, as the case may be, the direction to the person affected prejudicially."
Admittedly, the impugned letter issued by respondent No.1 is without any reasoning nor
has any illegality or irregularity been pointed out in making the said appointments. After
issuance of appointment letters of the petitioners and submission of their join ing reports,
valuable right had accrued in their favour but the respondent No.1, vide impugned letter, has
condemned the petitioners unheard. The valuable right having been accrued to the petitioners
could not have been snatched away without providing them opportunity of hearing. Reliance in
this regard is placed on the case of Chairman Development Authority v. Sajjad Ahmed Sheikh
2004 PLC (C.S.) 1095. The impugned letter does not point out any illegality and being issued
without first providing an opportun ity of hearing to the petitioners is amenable to the
constitutional jurisdiction of this Court. Reference in this regard is made to the case of Syed
Yousaf Ali Shah v. Administrator Municipal Corporation Bahawalpur (2002 PLC (C.S.) 1451).
8. The earlier approval of the recommendation of the Committee by respondent No.1 had
already been acted upon/given effect to as the respondent No.3 issued appointment letters in
favour of the petitioners, who also submitted their joining reports. Consequent to the withd rawal
of the approval by the respondent No.1, termination orders of the petitioners have not been
issued and their appointment orders are still intact. The appointment of the petitioners subsequent
to the approval by the respondent No.1, has given rise to a vested right, which cannot be taken
away after having been acted upon. According to the principle of locus poenitentiae, the power
of receding and going back on a decision is available to an authority only upto the time such
decision has not been carried into effect. Reference in this regard is made to the case of Mumtaz
Hussain v. D.M/D.C., Khairpur (1990 PCr.LJ 1784) and the case of Ghulam Muhammad v.
Superintending Engineer (1998 PLC (C.S.) 87). This however, does not mean that illegal
appointments can be similarly sustained, as an illegality cannot create vested rights, but in the
matter of these appointments no illegality has been pointed out.
9. The impugned letter dated January 2, 2012 issued by the respondent No.1 is, therefore,
declared null, vo id and of no legal effect. Consequently, the petitioners are declared to have
lawfully been appointed by the respondent No.3 on the recommendation of the Committee, duly
approved by the respondent No.1. However, since the petitioners have not been working since
the issuance of the impugned letter, they will not be entitled to receive remuneration for such
period. The petitioners also did not claim salary for such period.
The petition is allowed in the aforesaid terms, but with no order as to costs.
SAK /6/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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