Hafiz Ghulam Mustafa etc. vs Govt. Of Pb. etc.

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Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 3099 / 2021 / BWP

Hafiz Ghulam Mustafa and three others Versus

Government of Punjab and four others

JUDGMENT

Date of Hearing: 12.10.2021 Petitioner(s) By: Mrs. Samina Qureshi, Advocate Mr. Zafar Iqbal Awan, Advocate Mr. Muhammad Asif Mehmood Pirzada, Advocate Mr. Jamshaid Akhtar Khokhar, Advocate Sardar Yasir Nadeem Khan, Advocate Mr. Shakeel Ahmad Malik, Advocate Respondent(s) Ch. Shahid Mehmood, Assistant By: Advocate General Mr. Muhammad Yaseen Ataal, Advocate

ABID HUSSAIN CHATTHA, J: This Judgment shall decide the titled as well as the connected Writ Petitions No. 3387, 2976, 3199, 3188 and 3060 of 2021 as common questions of law and facts are involved in all these Petitions.

2.The brief facts of the case are that in the light of Notification No. SOR-III-2-28/90 dated 25.05.1993 (the “Notification”) out of total working strength, 20% posts of Junior Clerks are reserved for in-service employees through promotion of the employees working in BS-1 to BS-4 (all categories). On the basis of the Notification, applications were invited from the eligible incumbents, through the District

Education Officer (SE), Bahawalnagar. Consequently, 44 candidates were declared successful after typing test. The Departmental Promotion Committee (the “DPC”) recommended their appointment through promotion against 20% reserved quota of in-service promotion for the post of Junior Clerk, as depicted from the minutes of meeting dated 28.11.2020, whereafter, appointment / promotion orders of 44 qualified candidates were issued. Thereafter, on a public complaint, Deputy Commissioner, Bahawalnagar in his capacity as Administrator, District Education Authority got the matter investigated with respect to the process of promotion and upon the recommendations of the Inquiry Committee issued a direction to the Chief Executive Officer, District Education Authority, Bahawalnagar to withdraw the appointment / promotion Orders of the said incumbents including the Petitioners being violative of prevailing law, rules and Promotion Policy, 2010. The concerned District Education Officers were directed by the Chief Executive Officer, District Education Authority, Bahawalnagar to ensure implementation of the said order vide letter dated 17.03.2021 within their respective jurisdiction. Eventually, in compliance of the said instructions, the promotions of 44 in-service Class-IV employees to the post of Junior Clerk including the Petitioners were withdrawn vide order dated 06.04.2021 which has been impugned by the Petitioners by way of filing the instant constitutional Petition.

3.Learned counsel for the Petitioners submitted that after issuance of promotion / appointment letters, a vested right had accrued in favour of the Petitioners which could not have been taken away. The Deputy Commissioner, Bahawalnagar had no legal authority to order inquiry in the matter and to withdraw all appointment / promotion orders issued in favour of the Petitioners. The alleged inquiry was arbitrary, illegal and

unlawful. The impugned Order had been issued under the dictation of the Deputy Commissioner, Bahawalnagar. The decision of appointment was taken by the DPC, hence, the Deputy Commissioner alone did not have the authority to order withdrawal of promotion / appointment of the Petitioners. The Petitioners had already joined their respective places of postings and there is no complaint against them regarding any kind of inefficiency or misconduct. The then Chief Executive Officer, District Education Authority was herself member of the DPC and signed the recommendations of the DPC as its Secretary. The order of appointment had attained finality and could not have been recalled under the principle of locus poenitentiae. Reliance was placed upon case titled, “Shams ur Rehman v. Military Accountant General, Rawalpindi and another” (2020 SCMR 188); “Managing Director (Power), WAPDA and others v. Muhammad Luqman” (PLD 2003 Supreme Court 175); “Muhammad Akhtar and 3 others v. Board of Intermediate and Secondary Education, Faisalabad through Chairman and 3 others” (2020 PLC `(C.S.) 352); “Muhammad Azam v. Muhammad Tufail and others” (2012 PLC (C.S.) 1104); and “Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others” (2015 SCMR

4.Conversely, learned Law Officer and Mr.

Muhammad Yaseen Ataal, Advocate representing some of the aggrieved persons who were adversely affected by the appointments / promotions of the Petitioners under 20% in- service reserved quota submitted that the Petitioners are civil servants and as such, the constitutional Petition is not maintainable in view of the authoritative pronouncement of the Apex Court in case titled, “Ali Azhar Khan Baloch and others v. Province of Sindh and others” (2015 SCMR 456); “Khalid

Mahmood Wattoo v. Government of Punjab and others” (1998 SCMR 2280); “Muhammad Tufail and others v. National Bank of Pakistan and others” (2015 PLC (C.S.) 1442); and “Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hayat Hussain and others” (2016 SCMR 1021). The aggrieved persons are also employees of the Education Department and they duly availed legal remedy by way of filing appeal under Section 21 of the Punjab Civil Servants Act, 1974 (the “Act”) followed by W. P. No. 1804 / 2021 but during the pendency of the said appeal, the promotion letters of the Petitioners were withdrawn vide impugned Order dated 06.04.2021. Consequently, the appeal of the aggrieved persons was disposed of on 07.04.2021 with the direction to the Chief Executive Officer, District Education Authority, Bahawalnagar to make promotions after fulfillment of all the codal formalities i.e. seniority list, typing test and any other requirement according to prevailing law / rules. It was further submitted that on account of titled as well as connected Petitions, the fresh process as aforesaid has been stalled.

5.The appointments by way of promotion of in- service employees under a reserved quota are part of terms and conditions of service and appropriate remedy in case of any grievance lies with the Punjab Service Tribunal. Further, it has been conclusively settled in the case of Ali Azhar Khan Baloch and others (supra) that a Writ Petition with respect to terms and conditions of civil servants is not maintainable. In the said Judgment it was held that the principle of locus poenitentiae is not applicable when the benefit extended is in violation of law leading to infringement of right of other civil servants and that Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) ousts the jurisdiction of this Court in respect of the matters pertaining to the terms and conditions of

civil servants which include eligibility to promotion. In the present case, it may be argued that the entire process of promotion was scraped and as such, the matter was not regarding the terms and conditions of service of employee(s) but it was rather an administrative or executive action which was open to judicial review under Article 199 of the Constitution. However, even on this touchstone, the Petitioners cannot succeed, for the reason that the Petitioners were civil servants before their appointment / promotion orders and remained civil servants even after the withdrawal of the appointment / promotion orders. Therefore, their remedy with respect to their grievances regarding the impugned order necessarily vested with the Punjab Service Tribunal and not by invoking the constitutional jurisdiction of this Court. The impugned withdrawal order does not cause any prejudice to the Petitioners who are free to take part in the fresh process. Accordingly, the fresh process to be initiated will only bring more transparency and would be just and fair to the Petitioners as well as to other eligible employees. The jurisdiction vested under Article 199 of the Constitution is discretionary and equitable in nature. The facts and circumstances of the case do not call for any interference in the impugned order. The executive was well within its right to inquire into the process of recruitment with the objective to bring fairness and to remove mal-practices and illegalities in the process of promotion regarding 20% in-service employees. The Petitioners as well as the aggrieved in-service employees will get a fair opportunity for consideration in the fresh process to be initiated in accordance with law. The cases relied upon by the Petitioners are distinguishable since some of them emanate from the Judgments passed by the concerned Service Tribunals while in some of the cases, the Petitioners were not civil servants.

6.In view of the above, the instant Petition is not maintainable, hence, the same is accordingly, dismissed.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*