Naimatullah VS Chairman Worker Welfare Board & others

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

Judicial department Writ Petition No.1392-P/2013

Naimatullah Vs Chairman Worker Welfare Board and others

JUDGMENT

Date of hearing......03.10.2017 & 04.10.2017. Date of Decision on 04.10.2017.

Petitioner(s) by: M/S.Ghulam Nabi, Mumtaz Ahmad, Asif Yousafzai, Zartaj Anwar, Khalid Rehman Qureshi, Arshad Khan Tanoli, Tanveer Ahmad Mughul, Hamayoun Khan, Pir Hamidullah Shah, Muhammad Ijaz Khan Sabi, Barrister Mian Tajamul Shah, Syed Umar Ali Shah, Ishtiaq Ahmad Khan, Nasrullah Jan Khan, Burhan Latif Khaisori, Bashir Khan Wazir, Faridullah Kundi, Qaisar Hussain, Advocates and some petitioner in person.

Respondent(s) by: M/S Syed Haziq Ali Shah, Jehanzeb Mehsood & Safiullah Wazir Advocates alongwith Said Umar Khan Assistant Director Legal WWB, KPK, Peshawar, Jamshaid Iqbal Khan Law officer, WWB KPK, Peshawar.

MUHAMMAD YOUNIS THAHEEM, J:- Through

this single judgment this and connected writ petitions i.e W.P No. 2062-P/2013, W.P No.2729-P/2013, W.P No.296-A/2013, W.P No.1702-P/2014, W.P No.1832- P/2014, W.P No.3-M/2015, W.P No.92-A/2015, W.P No.94-A/2015, W.P No.188-A/2015, W.P No.195- B/2015, W.P No.397-D/2015, W.P No.411-D/2015, W.P No.422-D/2015, W.P No.431-D/2015, W.P

No.637-B/2015, W.P No.667-B/2015, W.P No.668- B/2015, W.P No.669-B/2015, W.P No.672-B/2015, W.P No.687-D/2015, W.P No.851-D/2015, W.P

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No.881-A/2015, W.P No.159-B/2014, W.P No.20- B/2016, W.P No.21-B/2016, W.P No.22-B/2016, W.P No.23-B/2016, W.P No.60-B/2016, W.P No.65- B/2016, W.P No.104-D/2016, W.P No.180-B/2016, W.P No.201-A/2016, W.P No.202-D/2016, W.P No.203-D/2016, W.P No.228-D/2016, W.P No.258- D/2016, W.P No.262-B/2016, W.P No.302-B/2016, W.P No.378-B/2016, W.P No.379-B/2016, W.P No.380-B/2016, W.P No.381-B/2016, W.P No.382- B/2016, W.P No.383-B/2016, W.P No.392-B/2016, W.P No.393-B/2016, W.P No.394-B/2016, W.P No.395-B/2016, W.P No.398-B/2016, W.P No.399- B/2016, W.P No.445-A/2016, W.P No.494-B/2016, W.P No.502-D/2016, W.P No.509-B/2016, W.P No.790-B/2016, W.P No.945-B/2016, W.P No.979- D/2016, W.P No.2167-P/2016, W.P No.3721-P/2016, W.P No.4736-P/2016, W.P No.78-D/2017, W.P No.97-B/2017, W.P No.156-B/2017, W.P No.243- D/2017, W.P No.515-P/2017, W.P No.1078-P/2017, W.P No.1079-P/2017, W.P No.1274-P/2017, W.P No.1388-P/2017, W.P No.1533-P/2017, W.P No.1750-P/2017, W.P No.3284-P/2017, W.P No.359- B/2016, W.P No.525-D/2015, W.P No.377-B/2016 and W.P No.2230-P/2017, having common questions of facts and law so, are decided through this common judgment.

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2.Brief facts of above mentioned writ petitions from serial No.1 to serial No.75 are that petitioners upon their respective qualifications applied for the posts mentioned below in the table as well as in their petitions in response to related advertisements and the Workers Welfare Board (hereinafter called Board) after following all codal formalities including test and interview, selected the petitioners who were appointed against relevant posts in the Working Folks Grammar Schools in the Province of Khyber Pakhtunkhwa as Principal in BPS-18, Teachers in BPS-14, Subject Specialists in BPS-17, Junior Instructors in BPS-14, Drivers in BPS-4, Sanitary Workers in BPS-2, Care Takers in BPS-9, Junior Clerks in BPS-7, Naib Qasid in BPS-2, EST in BPS-9, Class-IV in BPS-2, Library Attendants in BPS-5, Lecturer in BPS-17 and Vice Principal in BPS-17, initially on contract basis for 03 years which period was further extended in their respective Districts mentioned in their respective writ petitions. The petitioners were appointed duly by the then competent authority and in this respect appointment orders for their respective posts were issued, detail of which has been mentioned in their respective writ petitions. The petitioners after Ijaz

appointments fulfilled other required codal formalities, started performing their duties.

Directorate of Education, WWB of Khyber Pakhtunkhwa, Peshawar paid them salaries regularly. The services of petitioners who were previously performing their duties on contract basis were afterward regularized through various orders of the competent authority, thereafter respondents without serving any show cause notice and without conducting any inquiry, terminated their services on different reasons i.e poor performance during probation, not qualified for the post against which they were regularized, due to having 3rd division in BA, and on the ground that their services are no more required to the department, either those were on probation or on contract basis or regularized employees. The detail of termination with reasons mentioned in their respective petitions is briefly given in the table. So the petitioners feeling aggrieved filed petitions mentioned in the following table with brief facts as to appointment, post, status and reason for termination.

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S.No Petition No & Titled Qualification, Post & Date of Contract/Re- Reason for Pay Scale Appointment gularized Termination W.P No.1392-P/2016 MA & M.Ed, Principal 21.01.2013 Contract Poor Performance in 1 Naimat Ullah Vs in BPS-18 probation.

Govt:

W.P No.2062- MA, B.Ed, Teacher in 15.06.2010 Regularized not qualified for the 2 P/2013, Muhammad BPS-14 post Arshad Vs Govt:

W.P No.2729- Teacher in BPS-14 17.07.2012 Contract no more required 3 P/2013, Miss Asfa Gul Vs Govt:

W.P No.296-A/2014, MA.B.A,B.Ed, F.A 27.09.2012 Contract not authorized for the 4 Nazli Kanwal Vs (CT), Teacher in same Govt: BPS14 W.P No.1702- Teacher in BPS-17 12.11.2013 regularized without any reason 5 P/2014, Zafrullah Vs Govt:

W.P No.1832- M.A/B.Ed , Principal 21.01.2013 Regularized poor performance and 6 P/2014, Matiullah Vs in BPS-18 embezzlement Govt:

W.P No.3-M/2014, Teacher in BPS-14 20.02.2012 Contract no more required 7 Murad Ali etc Vs Govt:

W.P No.92-A/2015, Teacher in BPS-14 31.03.2012 Contract poor performance & 8 Hina Bukhari Vs 3rd division in BA Govt:

W.P No.94-A/2015, M.A, Teacher in BPS- 21.01.2013 Contract no more required Lubna Arfan Vs Govt: 14 W.P No.188-A/2015, Teacher in BPS-14 01.10.2012 Contract appointment without 10 Muhammad Fahad authority Saeed Vs Govt:

W.P No.195-B/2015, Principal in BPS-18 21.01.2013 Contract without any reason Ihsanullah Vs Govt:

W.P No.397-D/2015, Subject Specialist 21.01.2013 Contract terminated in Samiullah Vs Govt: Economics in BPS-17 probation period W.P No.411-D/2015, Naib Qaid in BPS-2 07.03.2012 Contract as per clause IV of his 13 Muhammad Farooq appointment order Vs Govt:

W.P No.422-D/2015, M.A, B.Ed, 01.10.2012 Contract appointment without 14 Asadullah Anwar Vs Elementary Teacher authority Govt: in BPS-14 W.P No.431-D/2015, B.A, M.A (Urdu) 28.09.2012 Contract on the ground of long 15 Miss Nabeela ,Teacher in BPS-14 absence Rahman Vs Govt:

W.P No.637-B/2015, Superintendent in 21.01.2013 Contract appointment letter 16 Najeebullah etc Vs BPS-16 signed by other than Govt: secretary W.P No.667-B/2015, BSC & B.Ed, Teacher 06.02.2012 Contract Irrelevant Qualification 17 Waheed Khan Vs in BPS-14 Govt:

W.P No.668-B/2015, M.A, B.Com, B.A 08.03.2012 Contract Irrelevant Qualification Mohammad Khalil Vs Additional & B.Ed, 18 Govt: Teacher in BPS-14

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W.P No.669-B/2015, Principal in BPS-17 14.01.2013 Contract no more required Zaib Ullah Vs Govt:

W.P No.672-B/2015, Teacher in BPS-14 22.03.2012, Contract Irrelevant Qualification Abdul Jamal etc Vs 02.02.2012 &

Govt: 27.08.2012

W.P No.687-D/2015, Junior Instructor in 16.05.2012 Contract termination in 21 Muhammad Tahir BPS-14 probation period Shah W.P No.851-D/2015, Driver in BPS-4 02.02.2012 Contract no more required 22 Muhammad Jamil Vs Govt:

W.P No.881-A/2015, BBA (Hons) with B.Ed, 15.02.2012 Contract as per clause IV of his 23 Shafiq-ur-Rehman Vs Elementary Teacher appointment order Govt: in BPS-14 W.P No.159-B/2014, Teacher in BPS-14 21.01.2013 Contract without any reason 24 Miss Nazia Jehan etc Vs Govt:

W.P No.20-B/2016, Junior Instructor in 31.10.2011 Contract poor performance 25 Muhammad Ullah Vs BPS-14 Govt:

W.P No.21-B/2016. Teacher in BPS-14 16.07.2012 Contract no more required 26 Mst:Rohi Kalsoom Vs Govt:

W.P No.22-B/2016, Teacher in BPS-14 18.07.2012 Contract no more required Waqar Khan Vs Govt:

W.P No.23-B/2016, Sanitary Worker in 09.09.2011 Contract reinstated but has not 28 Barkat Ullah Vs Govt: BPS-2 been allowed to assumed charge W.P No.60-B/2016, Teacher in BPS-14 & 19.07.2012, Contract due to closing of 2nd Bilal Khan etc Vs BPS-9 22.04.2011, shift Govt: 28.09.2012,

W.P No.65-B/2016, Class-IV in BPS-2 31.03.2012, Contract due to non adjustment 30 Noor Jehan Khan etc 25.03.2011 & relieved from service Vs Govt: 21.01.2013 W.P No.104-D/2016, Teacher in BPS-14 20.04.2011 & Contract no more required Baitullah etc Vs Govt: 28.04.2011 W.P No.180-B/2016, B.A, B.Ed, M.A & 30.03.2012 Contract without any reason 32 Muhammad Sharif M.Ed, Teacher in BPS- Khan Vs Govt: 14 W.P No.201-A/2016, Naib Qasid in BPS-2 09.07.2011 Contract appointment without Azam Shah Vs Govt: authority W.P No.202-D/2016, Lab Attendant in BPS- 25.02.2012, Contract as per clause IV of his Malik Jamshed etc Vs 2, Shop Assistant in 10.05.2012, appointment order Govt: BPS-6, Junior 24.02.2012, Instructor in BPS-14, 07.11.2013, 34 Laboratory Assistant 29.08.2013, in BPS-6, Junior Clerk 29.02.2012 & in BPS-7 21.01.2013

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W.P No.203-D/2016, Teacher in BPS-14 02.04.2012 Contract as per clause IV of his Muhammad Naeem- appointment order

ul-Hassan Vs Govt:

W.P No.228-D/2016, Commerce Teacher in 11.06.2012 Contract without any reason Farman Saadullah Vs BPS-14 36 Govt:

W.P No.258-D/2016, Junior Instructor 18.01.2013 Contract as surplus employee 37 Muhammad Ali Siraj (Electrical) in BPS-14 Vs Govt:

W.P No.262-B/2016, Teacher in BPS-14 20.04.2011 Contract being 3rd division in 38 Jahanzaib Khan Vs B.A Govt:

W.P No.302-B/2016, Teacher in BPS-14 12.08.2010 Contract being 3rd division in 39 Wajid Ullah Khan Vs B.A Govt:

W.P No.378-B/2016, Teacher in BPS-9 13.09.2011 Contract due to closing of 2nd Sajjad Khan Vs Govt: shift W.P No.379-B/2016, Teachers in BPS-14 19.07.2012 Contract due to closing of 2nd 41 Atiq Ullah etc Vs shift Govt:

W.P No.380-B/2016, Teacher in BPS-14 22.04.2011 & Contract as surplus employee Imranullah Wazir etc 16.07.2012

Vs Govt:

W. P No.381-B/2016, Teacher in BPS14 22.04.2011 & Contract no more required 43 Bashir Ullah etc Vs 11.02.2012 Govt:

W.P No.382-B/2016, Teacher in BPS-14 13.07.2012, Contract no more required Imam Ghulam etc Vs 21.04.2011,

Govt: 18.07.2012 &

W.P No.383-B/2016, Teacher in BPS-14 17.07.2012 Contract due to closing of 2nd 45 Fidaullah Fida Vs shift Govt:

W.P No.392-B/2016, Teacher in BPS-14 28,04.2011 Contract due to closing of 2nd 46 Sher Afzal Khan Vs shift Govt:

W.P No.393-B/2016, Junior Clerk in BPS-7 24,02.2012 Contract due to closing of 2nd 47 Muhammad Noor Vs shift Govt:

W.P No.394-B/2016, Junior Clerk in BPS-7 02.04.2012 Contract due to closing of 2nd 48 Zakir Ullah Vs Govt: shift

W.P No.395-B/2016, Teacher in BPS-14 06.08.2012 Contract due to closing of 2nd 49 Zia Ullah Vs Govt: shift

W.P No.398-B/2016, Care Taker in BPS-9 & 28.09.2012 & Contract School is without the Muhammad Ishaq Junior Clerk in BPS-7 27.09.2012 approval of governing etc Vs Govt: body of WWF

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W. P No.399-B/2016, Teacher in BPS-14, 28.04.2011, Contract School is without the Muhammad Rahman Subject Specialist in 06.08.2012, approval of governing etc Vs Govt: BPS-17 & Computer 06.08.2012 & body of WWF Instructor in BPS-16 27.09.2012

W.P No.494-B/2016, Junior Instructor in 31.10.2011 Contract poor performance 52 Saddam Khan Vs Govt: BPS-14 W.P No.502-D/2016, Teacher in BPS-14 21.01.2013 Contract without any reason 53 Manohar Anam Raza Vs Govt:

W.P No.509-B/2016, Junior Instructor in 21.01.2012 Contract no more required Haider Khan Vs Govt: BPS-14 W.P No.790-B/2016, B.Ed Teacher in BPS- 28.02.2012 Contract as per clause IV of his 55 Shams Qamar Ali 14 appointment order Shah Vs Govt:

W.P No.945- Account Assistant in 21.01.2013 Contract reinstated but no 56 B/2016,Hikmatullah BPS-14 charge has been Vs Govt: assumed to him W.P No.979-D/2016, Junior Instructor BPS- 14.01.2013 Contract without any reason Ehsanullah Vs Govt: 14 W.P No.2167- Naib Qasid in BPS-2 23.05.2011 Contract as per clause IV of his 58 P/2016, Mir Aslam Vs appointment order Govt:

W.P No.4746- EST in BPS-9 18.01.2013 Contract due to closing of 2nd 59 P/2016,Mushahid shift Khan Vs Govt:

W.P No.78-D/2017, Class-IV in BPS-2 17.02.2012 Contract being overage Hidayatullah Vs Govt:

W.P No.97- Library Attendant in 06.02.2012 Contract no more required 61 B/2017,Attaullah BPS-5 Khan Vs Govt:

W.P No.156-B/2017, Teacher in BPS-14 22.04.2011 Contract being 3rd division in 62 Muhammad Ibrar Vs B.A Govt:

W.P No.243-D/2017, Teacher in BPS-14 16.02.2012 Contract poor performance 63 Muhammad Umar Usman Vs Govt:

W.P No.515-P/2017, Master Degree in 19.09.2013 Contract without any reason Waheed Akhtar Vs Science, B.Ed, DAE

Govt: (Electrical), Lecturer Physics in BPS-17 W.P No.1078-P-2017, First class Master, 18.01.2013 Contract being unqualified 65 Karimullah Vs Govt: B.Ed, Subject Specialist in BPS-17 W.P No.1079-P- First class Master, 27.08.2012 Contract being in the probation /2017, Amjid Ali Vs M.A (Arabic) M.S period and over and Govt: (Islamic Studies) P.T.C above the sanctioned & B.Ed , Elementary strength.

W.P No.1274- Teachers in BPS-14 07.09.2012, Contract without any reason 67 P/2017, Akhtar Hayat 07.11.2012 & etc Vs Govt: 12.10.2012 W.P No.1388- Teacher in BPS-14 19.07.2012 Contract due to closing of 2nd 68 P/2017, Shakirullah shift Vs Govt:

W.P No.1533-P-2017, M.A, B.Ed, Teacher in 19.07.2012 Contract Salaries not released 69 Ahmad Raza Vs Govt: BPS-14 on the pretext of as surplus employee

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being in the probation W.P No.1750- Teacher in BPS-14 19.07.2012 Contract period and over and 70 P/2017, Mubashir above the sanctioned Nazar Vs Govt: strength.

W.P No.3284- Teacher in BPS-14 26.09.2009 Regularized being 3rd division in 71 P/2017, Usman B.A Farooq Vs Govt:

W.P No.359-B/2016, M.A Arabi & 17.07.2012 Contract Salaries not released Maulvi Hafiz Islamiyat , BA, from September 2013 Muhammad Saeed Teacher in BPS-14 to 15.07.2015 and Khan Vs Govt: refused to allow the petitioner to join duty.

W.P No.525-D/2015, Teacher in BPS-14 05.06.2012 Contract no more 73 Saqib Ali Vs Govt: required/irrelevant qualification (two termination order) W.P No.377-B/2016, Teachers in BPS-14 11.02.2012, Contract As the School was Sher Muhammad etc and BPS-17 16.01.2013, closed being without 74 Vs Govt: 20.02.2012, the approval of 16.02.2012, governing Body of

28.02.2012 & WWF.

W.P No.2230- Vice Principal in BPS- 03.04.2012 Contract on telephone call he P/2017, Ayub Khan 17 (on fixed pay) was terminated Vs Govt: 04.06.2013

(Converted from fixed pay to contract)

3.Respondents were called to file their

respective comments, so they filed their respective comments by raising variety of preliminary as well as factual objections asserting therein that this Court has got no jurisdiction. Petitioners are estopped by their own conduct to seek constitutional relief from this Court as they have not approached the forum provided under rules of Worker Welfare Fund (Employees Service) Rules 1997. They asserted that all the appointments were made either by

Secretary/Chairman of Board or other officers of Board or concerned Principal of Working Folks Ijaz

Grammars School in violation of rules, without proper scrutiny of their academic record, without test and interview as petitioners who have 3rd division in BA and were not eligible for the respective posts were appointed, so they were terminated and detailed reasons are given in the termination orders of each petitioner/Ex-employee. So, the parawise comments are comprehensive and are worth reliance, petitioners have no cause of action, so all petitions are liable to dismissal. They supported the termination orders passed by respondents.

4.As different writ petitions were filed at different Hon’ble Benches of this Court at Abbottabad, Bannu, D.I Khan, Mingora and also at principal Court at Peshawar, so, having common question of law and facts were sent to the principal Court at Peshawar by the order of Hon”ble Judges at Benches of this Court, so, all the petitions mentioned in the table were clubbed together.

5.Learned counsel for petitioners

vehemently argued that initially petitioners were appointed on contract basis after fulfillment of prescribed procedure of Workers Welfare Fund (Employees Service) Rules 1997, both in teaching and non teaching cadres, their academic records were then properly scrutinized. After joining duties Ijaz

and rendering services their contracts were extended and afterward some petitioners who were on contract basis were regularized. Learned counsel for petitioners added that some of petitioners have been terminated when they were under probation, some petitioners were promoted but were not assigned job on the promoted posts and were demoted after promotion to the lower grade on unfounded reasons with allegation of poor performance, un-authorized appointment, even without assigning any reason. All the petitioners have been terminated in violation of Workers Welfare Fund (Employees Service) Rules 1997, without serving any show cause notice and without conducting an inquiry against them. So, prayed that their terminations orders are based on malafide, without lawful authority against law as they were on job since their appointment for so many years, so great injustice has been done to the petitioners. In this respect the learned counsel for petitioners placed their reliance on 1996 SCMR 1205,

2009 SCMR 194, 1997 SCMR 1205, 1997 SCMR

1552, PLJ 1997 SC 1353, 2008 SCMR 598, 2009

SCMR 412, 2004 SCMR 303, 2000 SCMR 643, 2004

SCMR 303, 2005 SCMR 85, 2009 SCMR 412.

6.On the other hand the learned counsel for respondents argued that the petitioners were Ijaz

appointed beyond the required strength of staff without observing legal formalities and in their appointment orders clause IV is quite clear vide which the respondents have the authority to terminate the services of appointees even during probation without assigning any reason. They added that the petitioners who have 3rd division in BA were appointed, therefore, services of such employees have correctly been terminated as in such like cases, there is no need of assigning any reason. Regularization of employees of Board does not confer any right upon employees that they cannot be proceeded if otherwise their appointments are found based on irregularities and against the rules. Lastly they submitted that this Court has got no jurisdiction. In this respect they placed reliance on the judgment of Hon’ble Supreme Court cited 2016 SCMR 1299, Civil Review No.246/2016 in C.A No.1109/2013, decided on 18.10.2016 titled as Secretary Welfare Board Khyber Pakhtunkhwa Vs Naimatullah & others, Worker Welfare Fund Ordinance 1971, Worker Welfare Fund(Employees Service) Rules 1997 and Minutes of the meeting No.81st of Board.

7.Arguments heard and record perused.

8.From the perusal of averments made in the above mentioned writ petitions and given in the Ijaz

table, the petitioners sought indulgence of this Court through their respective constitutional petitions invoking jurisdiction of this Court for setting aside the termination orders/notifications of various dates mentioned in the respective petitions as well as in the impugned termination orders briefly depicted in the above table.

9.It is admitted position that petitioners were appointed upon different posts by moving applications in response to the respective advertisements in different cadres either in teaching or non teaching.

Some petitioners were appointed on daily wages or on fixed pay or on contract for 03 years. It is further admitted position that the services of some of the petitioners had been regularized. The Board duly advertised the posts of Principal, Vice Principal and Teachers in different grades i.e Teachers in BPS-14 and Subject Specialists in BPS-17 and Lecturers in BPS-17, but their services have been either terminated or they have been removed from services or have been sent to surplus pool, however this Court noticed that some petitioners filed their representations and though their services were reinstated but despite reinstatement, the Board is not paying them salaries. Similarly some of the petitioners were promoted by the Board promotion Ijaz

committee but afterward they were not only demoted from the promoted posts but their services were also terminated. The petitioners were appointed in prescribed manner and were performing their duties as probationer but during probation period without any show cause notice and inquiry have been terminated.

10.The law governing service matters ordains that when someone is appointed after fulfilling required criteria or appointment is made in prescribed manner according to rules and law duly selected by the Selection Board then the service of such employee could only be terminated after following the law governing procedure for removal from service, meaning thereby that employee should be given a show cause notice for proposed action of removal from service, showing charges, giving opportunity to reply such charges and conducting of inquiry, recording of evidence but all such vital and important principles of law had not been followed and if such principles are not followed then the termination order become ultra vires, ab-initio void, in violation of law and without lawful authority as the above said principles of justice ordains that no one should be condemned unheard (Audi Alteram Partem) and this principle is considered to be embodied in every Ijaz

statute, all rules and regularizations of that body or boards. In the aforesaid petitions this very important principle of justice has been thrown away from the door and was ignored. In some cases even no reason for termination has been given in the termination orders particularly while terminating an employee who was still under probation even in this situation when an employee assumed the charge of his duties and had performed his duties for some months before the expiry of probation period could not be terminated without assigning valid reasons after fulfilling the procedure prescribed by rules. The termination during his probationary period was declared by the Hon’ble apex Court as not tenable. In this respect wisdom is derived from the judgment of Hon’ble Supreme Court in case titled “Secretary, Ministry of Education, Government of Pakistan Islamabad & others Vs Muhammad Azam Chaudhry & another” cited as 2009 SCMR 194. The principle enunciated in the above referred case is that services of some petitioners were terminated during probation period, so they challenged the termination order before Service Tribunal and the judgment of Service Tribunal was challenged before Hon’ble apex Court on the ground that services of probationary employee can be terminated during probation period but that petition Ijaz

was dismissed under the principle that without assigning any reason, the service of petitioner/probationer cannot be terminated.

Furthermore the argument that the services of respondents can be terminated without assigning any reason during probation period is not tenable.

Similarly in the case of similar circumstances Hon’ble apex Court in its judgment cited as 2000 SCMR 643, even refused leave against the judgment of the Tribunal, wherein the services of petitioners were terminated without show cause notice or inquiry. The principle laid down in the above cited judgment is reproduced as below:-

“In this view of the matter, it was rightly observed by the Tribunal that with his promotion to the next higher rank, he would be deemed to have been confirmed. On account of this situation, we are of the view that the Tribunal rightly held that the termination of service of respondent was illegal, inasmuch as he was entitled to a show cause notice or an inquiry should have preceded before terminating his service. In this view of the matter, the Federal Service Tribunal rightly accepted the appeal of the respondent.”

11.Learned counsel for respondents during arguments and in their comments reiterated that appointing authority while making appointments of petitioners not only violated the appointment rules but committed different irregularities and due to their Ijaz

wrong decision over staffing by way of appointments of petitioners was made, as there were so many lapses on the part of appointing authority due to which the services of petitioners were terminated.

This argument in view of law laid down by Hon’ble Supreme Court in case cited as 2014 SCMR 303 is not acceptable as it has no footing and is unfounded as the Hon’ble Supreme Court for and again has held that appointees cannot be penalized, who have been appointed allegedly without following the rules or on irregular basis. In such like circumstances it has been held that it is the appointing authority to be proceeded against and not the appointees who have served the department for a long period of time. In the cited case, of similar like situation the Hon’ble Supreme Court laid down the following rules.

“Obviously the appointments so made, were made by the competent authority and in case prescribed procedure was not followed by concerned authority, the appointees/ respondents could be blamed for what was to be performed and done by the competent authority before having verified the qualification and suitability and observance of the due process before issuing the appointment orders---Petitioners cannot penalize the persons/ respondents, who had put in more than ten years service with them considering that there was no allegation of misconduct against them and were only to be removed on account of change in Government on

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the ground that they were no more required and were not appointed after observance of due process of law. The petitioners/authorities competent should be held responsible and liable for the said lapse on their part. It could not be forgotten the persons/ respondents who have put in more than ten years of their services and thereby have lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage and in case they are to be removed now the same would amount to hitting them hard creating problems for the society at large considering each of the respondent being a bread earner for his family. Reliance is made on

1996 SCMR 413 & 2002 PLC (C.S)

12.Similar view has been laid down in the judgment in case “Director, Social Welfare, NWFP, Peshawar Vs Sadullah Khan” cited as 1996 SCMR 1350. In the cited judgment, Hon’ble apex Court dealt the circumstances in which the services of petitioners of cited case were terminated on the ground that such appointments were irregular and were on purely temporary basis. The principle enunciated in the cited judgment is reproduced as below:- “The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing to Ijaz

the appointment. So, if some civil servant is appointed by the competent authority against the prescribed rules then action against them who are guilty of making illegal appointment be taken.”

In this respect if reference is needed in that case we refer 2005 SCMR 85 & 1998 SCMR 1938. The principles of law relating to the service matter are not only to be observed by the Government but also by the statutory bodies who are responsible to act in accordance with law. It was held in case “Arshad Jamal Vs NWFP Forest Development Corporation & others” cited as 2004 SCMR 468, it was incumbent upon authorities that before passing order of termination of an employee he should have been issued show cause notice and had been given opportunity of hearing and if the party who has been terminated has not been provided opportunity of hearing that order is without lawful authority and was held set aside.

13.In the petitions in hand, services of most of petitioners were converted from daily wages to contract employment and then serving for a long time on contract basis, their contracts were extended and their services were regularized, hence once the competent authority concerned had regularized the services of an employee it created valuable right in Ijaz

favour of that employee which under the principle of “Locus Poenitentiae” could not be reversed by taking contradictory stances on different time before different forum as the authorities i.e in instant case “Board” also could not approbate and reprobate in the same breath about the same matter as once employees were regularized and then their services were terminated. In this respect if reliance is needed it be put on 1999 SCMR 1004, PLD 1992 SC 207 and 2008 SCMR 598.

14.So far as the arguments advanced by learned counsel for respondents regarding legal bar on invoking constitutional jurisdiction of this Court is concerned, suffice is to say that the petitioners are not civil servant and are employees of the “Board” which is autonomous body, distinct entity and having Statutory Rules of 1997. Moreover, in identical nature of cases cited as 2007 SCMR 682, Hon’ble Supreme Court enunciated the following principle distinct in nature where in the matter in question was of promotion and objection regarding bar of jurisdiction under Article 212 of the Constitution was raised which was repelled. The rule enunciated is reproduced as below:-

“That question of promotion rests within the jurisdiction of competent authority, which would not be

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ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acted in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on it, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong--- Hon’ble Supreme Court declined to agree with the learned counsel for petitioner that it was not a fit case for interference by the High Court in exercise of constitutional jurisdiction---High court has not substituted it for the act of authorities, therefore such plea was preposterous and not relevant leave was refused.”

15.Therefore, in wake of above discussed factual as well as legal position, we are of the considered view that the actions/termination orders/demotions passed by the respondents are in violation of rules envisaged in Workers Welfare Fund (Employees Service)Rules 1997 and general principle relating to service matters as ordained in service laws of Khyber Pakhtunkhwa that an employee either he is in probation or is temporary or is under contract or has been regularized only can be removed from service after following above said rules and if rules and laws are not followed then those termination orders are without lawful authority, based on malafide and are in violation of principle of justice. Thus are amenable to constitutional jurisdiction of this Court.

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16.Thus we in the light of above discussion allow the above mentioned petitions, so termination orders are set aside deemed to be in service from the date of judgment, however they be not paid salaries for such intervening period when after termination they have not served the department as salary is always in lieu of service or is for work done, so, are not entitled for back benefits.

Announced.

JUDGE

JUDGE

DB of Mr. Justice Waqar Ahmad Seth & Mr. Justice Muhammad Younis Thaheem Ijaz