2020 P L C (C.S.) 927
[Balochistan High Court]
Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ
ABDUL KARIM and others
Versus
SECRETARY HEALTH DEPARTMENT GOVERNMENT OF BALOCHISTAN and
others
Constitutional Petitions Nos. 415 and 505 of 2019, decided on 5th December, 2019.
Civil service ---
----Contract appointment--- Cancellation of ---Non-payment of salaries to the appointees ---
Effect ---Petitioners -employees were appointed on contract basis and their posting orders
were issued but thereafter sai d appointments were cancelled ---Validity ---Department had
recruited the petitioners in accordance with law ---Non -posting was not fault of the
employees ---Department was bound to pass order for posting of employees ---Employees
could not assume duty without being posted by the department ---Impugned order had been
passed without issuing show cause notice to the employees which was not sustainable ---
Employees should not have suffered due to fault of department ---Department had failed to
assign any reason for is suing order for cancellation of contract appointments ---Department
was bound to pay salaries to the employees from the date of their appointment till the expiry of their contract period ---Non-payment of salaries to the petitioners -employees was violation
of Art. 3 of the Constitution---Impugned order was declared void and of no legal effect ---
Department was directed to release the salaries of employees from the date of issuance of offer letters till expiry of their contract period ---Constitutional petition was allowed, in
circumstances.
Obaidullah Quresh for Petitioners (in Constitutional Petition No.415 of 2019).
Abdul Latif Kakar, A.A.G., Dr. Khalil ur Rehman, Director Malaria/VBD Control
Program Balochistan and Hidayatullah, Senior Law Officer Health D epartment for
Respondents (in Constitutional Petition No.415 of 2019).
Mazher Ilyas Nagi for Petitioners (in Constitutional Petition No.505 of 2019).
Abdul Latif Kakar, A.A.G., Dr. Khalil ur Rehman, Director Malaria/VBD Control
Program Balochistan and Hi dayatullah, Senior Law Officer Health Department for
Respondents (in Constitutional Petition No.505 of 2019).
Date of hearing: 18th November, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----Through this common judgment we intend to
decide the referred petition s arising out of the same subject matter.
In C.P. No.505 of 2019:
The petitioner prayed as under:
A) That this Hon' able Court may be pleased to issue writ in nature of certiorari,
mandamus and prohibition, or to make an order: -
i) Declaring the non -releasing of salaries of petitioners without reason, null and void,
therefore, is illegal and unlawful;
ii) Directing respondents to release the salaries of petitioners with back benefits.
B) That such further and other orders be made or issued in thi s matter as this Hon'ble
Court may deem fit and proper.
In C.P. No.505 of 2019:
The petitioners prayed as under:
i) Declare that the cancelation of appointments by operation of impugned letter dated
05.11.2018 is unconstitutional, without lawful authority and is of no legal effect;
ii) Set aside the aforesaid impugned letter dated 05.11.2018;
iii) Direct the respondents to restore the petitioners in service will all back and consequential benefits and post them against the posts for which they were selecte d/appointed;
iv) Suspend the operation of impugned letter dated 05.11.2018 till pending final adjudication of instant case filed before this honorable Court;
v) Grant any other relief which may be deemed just and appropriate in the circumstances of the cas e; and
vi) Award costs under section 35 and compensatory costs under section 35 -A, C.P.C.,
1908 as amended by the Civil Law Reforms Act, 1994 (PLD 1995 Central Statutes 1) for entangling the petitioner in unnecessary litigation causing material loss to him in
terms of time, money and energy.
2. Brief facts leading to file the referred petitions are that the Health Department
Government of Balochistan vide advertisement dated 13.07.2018 in daily newspapers of Quetta including Daily Express invited applicatio ns from interested candidates against the
vacant posts on contract basis in the Provincial Program Implementation Unit (PPIU); that pursuant to the said advertisement the petitioners also applied for one and other advertised posts and appeared in the test and successfully qualified and thereafter appeared for viva -
voce; that pursuant to prior approval of the competent authority vide letter No.PC(H)VBD /
2018/6795- 96 dated 10th August 2018, the respondent No.2 issued offer letters followed by
the terms and condition; that in continuation of order of Director Malaria/Vector Born
Disease (VBD) Programs Balochistan Quetta, the District Health Officer Gwadar vide office Order No/1/4 Estt/2638/51, dated 16.08.2018 issued posting orders of six petitioners; that thereafter the DHO Gwadar vide office letter No.2/3 -AF/3664/66 dated 8th November 2018
conveyed to DG Health Balochistan (respondent No.2 in C.P. No.505) for release of salary of
VBD Control Program Staff of District Gwadar; that DG Health Balochistan vide le tter
No.16706- 08 dated 15th April 2019 conveyed to Director VBD Program (respondent No.3 in
C.P. No.505) directed for release of salaries of the staff; that the Director VBD Program vide
letter No.793/95 dated 16th April 2019 conveyed to the Accountant General Balochistan for payment of salaries of VBD provincial staff; that meanwhile the DG Health Services Balochistan Quetta vide letter PS42045/46 date 5.11.2018 conveyed to Director VBD Program (respondent No.3 in C.P. No.505) for cancellation of appointme nt against the
District Level Position and in response whereof the Director VBD (respondent No.3 in C.P. No.505) vide Letter VBD/1022 dated 27th May 2019 inform the respondent No.1 in respect of complain regarding VBD Program and submitted that all employe es has been recruited
through their efficiency and they can strengthen the VBD Program at district which can reduce the disease burden and may reduce morbidity, but with no response, thus the petitioner have left with no other option but to invoke the juri sdiction of this court through
the instant petitions.
3. The respondent No.1 filed para -wise comment and marked the offer letters issued to
the petitioners.
4. We have heard the learned counsel for the petitioner, learned AAG and have gone
through the record with their able assistance. The record transpires that the offer letter was issued by the Director VBD Program (respondent No.3 in C.P. No.505) with the following effect:
"With the prior approval of the competent authority vide letter No.PC(H)VBD/2018/6795- 56 Dated 10th August 2018 from Health Department
Government of Balochistan on the recommendation of recruitment committee you are appointed (designation against each qualified candidate) for the period of One (1) year on contract basi s in Vector Borne Disease Control Program Balochistan for
District Program Implementation Unit (DPIU) Zhob Provincial Health Directorate, Quetta Balochistan, with immediate effect until further orders. The offer may accept with period of 7 days from the is suance of this letter in writing by accepting the
Terms and Conditions and as per TORs (attached).
5. The District Health Officer vide Letter No.1/4 -Estt/2638/51, dated 16.08.2018 issued
posting order of the petitioners Nos.7, 8, 17 and 18 in C.P. No. 505 of 2019 and they joined their duties, while the order of the remaining petitioners were not issued, whereafter the DHO Gwadar vide office, letter No.2/3A&F13664/66, dated 8th November, 2018 conveyed to Director VBD Program (respondent No.3 in C.P. No.505 of 2019) for release of salary of VBD Control Program Staff of District Gwadar, thereafter again vide office letter No.2/3-AOF 343/45, dated 21st February, 2019 conveyed to Director VBD Program Officer for release of salary of VBD Control Program Staff of D istrict Gwadar. Meanwhile the DG
Health Services Balochistan vide office letter No.PS42045/46 dated 5.11.2018 directed the
Director VBD Program for cancellation of appointment against the District Level Position. The record further transpires that after is suance of impugned referred letter the same office
issued another letter No.16706- 08, dated 15th April 2019 to the Director VBD Program with
direction to release the salaries of VBD staff, whereafter the respondent No.2 vide letter
VBD 1022 dated 27th May 2019 conveyed to respondent No.1 with the following effect:
With reference to the subject cited above it is submitted that a complaint on Prime
Minister's Performance Delivery Unit (OMDU) has been launched regarding cancellation of orders of VBD Program e mployees recruited for strengthening of
District VBD Program Implementation Units.
It is submitted that there is no any intention of cancellation of all these positions except non- allocation of funds for all these employees from P&D Department.
It is per tinent to mention that as all these positions are sanctioned in PC -I, which is
still 2020, and if funds are allocated for these employees which is about 104.645 million/year, the Provincial Office will give them task as per their job description without further delay. (only Rs.50 million has been released for 2018- 19 where as the
work plan submitted was Rs.250 million, which was including the pay of district VBD Program employees)
It is pertinent to mention that all these employees has been recruited through efficiency and they can strengthen the VBD Program at district which can reduce the disease burden and may reduce morbidity."
6. The contention of the learned AAG that the petitioners have not joined the duties,
even most of them were not issued offer letter due to which they are not entitled for salaries,
have no force. The respondents have not raised objection with regard of recruitment of petitioners in violation of law or nepotism and non- posting is not the fault of the petitioners.
It is duty of respondents to order for their posting and an employee cannot assume/join the
duty without being posted by the department and the impugned letter issued by DG Health Services Balochistan dated 5.11.2018 without issuing show -cause notice to peti tioners is not
sustainable. It is admitted principle of law that fault on the part of official respondents the employee cannot suffer.
7. The DG Health Services Balochistan (respondent No.2) directed the respondent No.3
on 5.11.2018 for cancellation of appointment while vide letter No.16706/08 dated 15.04.2019 again directed the respondent No.3 for release of salaries of VBD Provincial Staff, meaning thereby that the petitioners are still employees of the VBD. The second letter controvert the first letter of respondent No.2. The respondent No.2 failed to assigned any reason for issuing impugned letter dated 5.11.2018. The petitioners were appointed after fulfilling all procedural requirements. The referred order of respondent No.2 is violation of law and in such circumstances the Article- 4 of the Islamic Republic of Pakistan, 1973 ("the
Constitution") comes into play, which states as under:
Article: 4 Right of individuals to be dealt with in accordance with law, etc.
(1) To enjoy the protection of law and t o be treated in accordance with law is the
inalienable right of every citizen, wherever he may be and of every other person for
the time being within Pakistan.
(2) In particular -
(a) no action detrimental to the life, liberty, body, reputation or propert y of any
person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
8. The respondents are duty bound to pay salaries to the petitioners from the date of their
appointment till the expiry of their contract period as mentioned in their oar letters. The nonpayment of salaries to the petitioners is violation of Article 3 of the Constitution, which
stipulates as under:
"3. Elimination of exploitation.--- The State shall ensure the elimination of all forms
of exploitation and the gradual fulfilment of the fundamental principles, from each according to his ability to each according to his work."
For the above reasons the Constitution Petitions Nos.415 and 505 of 2019 are
accepted and the office letter No.PS42045/46, dated 5.11.2018, issued by the DG Health Services Balochistan for cancellation or appointment against the District Level Position is declared void and of no legal effect. The respondents are directed to release the salaries of petitioners from the date of issuance of offer letters dated 11th and 10th August of 2018 till expiry of their contract period of one year.
ZC/176/Bal. Petitions allowed.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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