Zakir Muneer vs EDO (Haelth) etc

2011 P L C (C.S.) 1651 [Peshawar High Court]

Before Waqar Ahmad Seth, J

ZAKIR MUNEER Versus

EXECUTIVE DISTRICT OFFICER (HEALTH), ABBOTTABAD and 3 others

Writ Petition No.159 of 2011, decided on 8th September, 2011.

Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.21---Constitutional petition---Civil service---Appointment---Cancellation/withdrawal of appointment---Petitioner who applied through proper channel, was selected vide appointment order on temporary/contract basis--- Petitioner was asked to produce medical/fitness certificate from Superintendent DHQ, which he produced and accordingly he submitted his joining report---Appointment order of the petitioner was cancelled with retrospective effect vide impugned office order issued on the recommendations of Chief Minister and on the same date respondent was appointed on that post---Validity---Withdrawal of order of appointment could not be legitimately maintained as no show-cause notice and opportunity of being heard was ever provided to the petitioner prior to the passing of impugned order---Principle of audi alteram partem would be attracted to the case of petitioner---Authority, under the principle of locus poenitentiae was competent to pass an order and get the same rescinded, but when an order had been passed and it had taken legal effect, then notwithstanding the power available under S.21 of General Clauses Act, 1897 same could not be withdrawn, unless and until it was established that the order was obtained by practising fraud or misrepresentation---In the present case, petitioner applied for the post concerned, was selected, appointed and order was communicated to the petitioner in consequence whereof he joined---Such order of appointment, which had taken legal effect, was not amenable to withdrawal---Any action taken, proceedings done and order made to the detriment of rights of the petitioner was without lawful authority and of no legal effect--- Order of withdrawal of appointment of the petitioner and subsequent appointment of respondent were not only tainted with mala fide, but were without jurisdiction and lawful authority and were of no legal effect---Order of appointment of the petitioner was restored by High Court and he was reinstated with full back-benefits and wages, in circumstances.

Muhammad Ayub for Petitioner.

Muhammad Nawaz Khan, A.A.-G. for Respondent.

Shad Muhammad Khan for Respondent No.4 with Respondent No.4 in person.

Date of hearing: 8th September, 2011.

JUDGMENT

WAQAR AHMAD SETH, J.--- Petitioner has called in question Order No.2953-59 dated 12-3-2011 whereby his appointment was cancelled and vide Office Order No.2960 dated 12-3-2011 respondent No.4 has been appointed as Ward Orderly.

2.The background of the present writ petition is that the petitioner being domiciled of the District applied for a post of Ward Orderly in Dispensary at Bandi Dhondan, Tehsil and District, Abbottabad under the control of respondent No.1, through proper channel. He was selected and appointed vide appointment letter No.2752/D-F/Estab/EDO (H) ATD dated 7-3- 2011, in BPS-2 on temporary/contract basis. Accordingly, petitioner was asked to produce medical/fitness certificate from Superintendent DHQ, Abbottabad, which was produced and accordingly he submitted his arrival report.

3.On 12-3-2011 the impugned office order was issued on the recommendations of Chief Minister, Khyber Pakhtunkhwa and Minister for Health, KPK whereby the appointment order of the petitioner dated 7-2-2011 was cancelled with retrospective effect. The said order reads as follows:---

"As per recommendations of the honourable Chief Minister, Khyber Pakhtunkhwa communicated vide Chief Minister's Secretariat letter No. SO-II/CMS/KPK/1- 7/2011/3390 dated 10-3-2011 and recommendations of the honourable Minister for Health, Government of Khyber Pakhtunkhwa of even date, this office appointment letter bearing No.2752/PF/Estab/ EDO(H)ATD dated 7-3-2011 issued in favour of Mr. Zakir Munir son of Zamurd Hussain, Village and PO Bandi Dhoondan, Tehsil and District Abbottabad is hereby stand cancelled with effect from the date of its issuance (i.e. 7-3-2011)".

Sd/-

Executive District Officer

(Health) Abbottabad.

4.On the same date, i.e. 12-3-2011 respondent No.4, namely, Rashid Mehmood was appointed as Ward Orderly in BPS-2 by respondent No.1, who has earlier appointed the petitioner and issued the impugned withdrawal order.

5.Respondents 1 and 2 filed their written comments wherein they admitted correct all the actual points raised by the petitioner and no where in the comments it was alleged that petitioner was lacking the qualification etc. nor remotely it was suggested that petitioner was not fit for appointment against the post he was appointed.

6.On the date of hearing, respondent No.1 /Executive District Officer, Health Abbottabad was personally present in the court and apologized by admitting that the petitioner's appointment order was wrongly cancelled.

We have heard the arguments of learned counsel for petitioner, A.A.-G. for respondents 1 to 3 and counsel for private respondent No.4.

7.Withdrawal of order of appointment cannot be legitimately maintained in that no show-cause notice and opportunity of being heard was ever provided to petitioner prior to the passing of impugned order, hence principle of audi alteram partem would be attracted, therefore, deeming the same to be void.

8.We are mindful of the fact that under principle of "locus poenitentiae" the authority competent to pass an order can get the same rescinded but when an order has been passed and it has taken legal effect then notwithstanding the power available to it under section 21 of General Clauses Act, 1897, the same cannot be withdrawn unless and until it is established that the order was obtained by practising fraud or misrepresentation. In the instant case, petitioner applied for the post, was selected, appointed and order was got communicated to him in consequence whereof he joined, as such, the order took legal effect not amenable to withdrawal, hence any action taken, proceedings done and order made to the detriment of rights of the petitioner are without lawful authority and of no legal effect.

9.No doubt respondent No.1, who is personally present in the court, has tendered unconditional apology and has assured the court to be careful in future but under Khyber Pakhtunkhwa Government Servant Conduct Rules, 1987 Rule 4-A(b) and Rule 30 prescribe certain limits for the conduct of the government servant. Moreover, 'misconduct' has been defined in section 2(e) of E&D Rules, 1973 and in the present circumstances it can be safely held that the government official had contravened, violated and bypassed, the rules and the conduct prescribed for them.

10.Respondent No.1 placed on record three documents according to which he was pressurized by the political authorities for the cancellation of petitioner's appointment and appointment of respondent No.4. In this respect, he produced letter No.3390 dated 10-3-2011 which is a direction of Chief Minister, Khyber Pakhtunkhwa with the remarks that appointment order issued by EDO Health, to be cancelled and Class-IV to be appointed as requested by Haji Qalandar Khan Lodhi, MPA Khyber Pakhtunkhwa, who is respondent No.3 in the writ petition. The said documents are marked as PHC/1, PHC/2, PHC/3 and

PHC/4.

Letter dated 10-3-2011 was also produced in which remarks of Minister for Health KPK are mentioned in which he has desired that the order of the petitioner be cancelled and respondent No.4/Rashid Mehmood be appointed in his place.

The appointment order of the petitioner was produced in which the hand written remarks of Minister for Health are there and Chief Minister's directive for implementation regarding the withdrawal of appointment order of petitioner and appointment of respondent No.4 has been ordered. These documents are placed on record for further proceedings by the concerned quarters.

11.The NAB Ordinance, 1999 is to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practice, misuse or abuse or power or authority. The holder of public office is defined in section 5(m) (iii) and section 9 describes corruption and corrupt practice. In this respect reference is made to section 9(a) (i) and (vi). It is a matter of great concern that public functionaries who are invested with powers to perform sacred jobs having indulged in such like activities, which not only cause injustice to deserving persons rather public offices are stigmatized and such acts can by no stretch of imagination be termed to be bona fide.

12.Viewed the matter in such perspective, it is high time to curb such events as courts are not hesitant to intervene and still born illegal acts are laid to rest at their inception, however, copy of this judgment be sent to Chairman, National Accountability Bureau, Islamabad and Chief Secretary, Government of Khyber Pakhtunkhwa for examining the documents available on record and if need be to proceed against the concerned officials/public functionaries and political figures involved in the present case, under relevant provision of law within a month under intimation to the Additional Registrar of this court.

13.Apparently, the order of withdrawal of appointment of the petitioner and subsequently appointment of respondent No.4 dated 12-3-2011 are not only tainted with mala fide but are without jurisdiction and lawful authority, hence of no legal effect.

14.We would, therefore, allow instant writ petition and hereby declaring the order of cancellation dated 12-3-2011 as illegal and unlawful. Consequently, by restoring order of appointment of the petitioner dated 7-3-2011, reinstating him with full back-benefits and wages. The wages are to be arranged from the pockets of government officials involved in the matter and petitioner shall be deemed in service from the date of his appointment/joining for the first time, in pursuance to the order of appointment.

H.B.T./278/P Petition allowed.