IN THE HIGH COURT OF SINDH, KARACHI

Constitution Petition No.D-1224 of 2011

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Date Order with Signature(s) of Judge(s)

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Present:

Muhammad Ali Mazhar, J.

Abdul Maalik Gaddi, J.

Ashfaque Ahmed & 08 others …………… Petitioners

Versus

Federation of Pakistan

& 3 others ……………. Respondents

1. For hearing of Misc. No.10788/2014

2. For order on office objection No.2

3. For hearing of main case

4. For hearing of Misc. No.4941/2011

Mr. Abdul Hayee Shaikh Advocate for the Petitioners alongwith Petitioner No.2.

Shaikh Liaquat Hussain, Standing Counsel.

Mr. Aamir Latif, Assistant Director (Law), IPO, Pakistan, for Respondents No.2 & 3.

Date of hearing : 18.11.2016

J U D G M E N T

Abdul Maalik Gaddi, J. Through instant constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have sought following relief(s):-

1) Declare that the recruitment/appointment of the petitioners are valid and legal as such the petitioners cannot be deprived of the vested and inviolable fundamental rights qua service in the IPO-Pakistan and order dated 14.04.2011 is illegal, arbitrary and ab-initio;

2) Declare that recruitment/appointments of the open merit and removal of their services that after two months is based on malafide dishonestly;

3) Permanently suspend the operation of impugned order dated 14.04.2011 issued by respondent No.2;

4) Direct the respondents to maintain status quo, till final disposal of this petition;

5) Any other relief(s), which this Hon’ble Court may deem fit appropriate in the circumstances of the case;

6) The cost of petition.

2. The brief facts giving rise to the filing of this petition as alleged by the petitioners are that respondent No.1 published an advertisement dated 17.10.2010 in the National Dailies for career opportunities in the Intellectual Property Organization of Pakistan (IPO) i.e. Director (Administration), Director (Chairman Secretariat), Deputy Director (Chairman Secretariat), Assistant Director (Administration), Assistant Director (Staff Officer), Private Secretary, Office Assistant, Data Entry Operator, Dispatch Rider, Office Boy, Security Guard and Chowkidar on the terms and conditions stipulated in the said advertisement. The petitioners on the basis of their qualification applied for the posts of Office/IT Assistant, Office Attendant and after qualifying their tests/interviews were selected for the said posts and accordingly, the petitioners were issued offer of appointment dated 18.01.2011 and 03.02.2011 respectively, which were accepted by them and consequently, they joined their respective duties on 04.02.2011 and also the office order was issued on the same day by the respondents. Thereafter, vide order dated 11.02.2011; they were transferred to Trade Mark Registry, Karachi. However, vide office order dated 14.04.2011 issued by Government of Pakistan, Intellectual Property Organization (IPO-Pakistan), whereby the services of the petitioners were terminated with immediate effect being found illegal and void, which has been challenged through this petition. It is also averred that the case of the petitioners is identical to the case of C.Ps. Nos.D-1372 and 1373 of 2009, which were finally decided by this court vide judgment dated 14.01.2011, therefore, the petitioners are entitled for the same treatment.

3. The respondent No.1 has filed his parawise comments, wherein they have denied the case and claim of the petitioners by stating that the petitioners were recruited illegally and unlawfully in the Intellectual Property Organization of Pakistan on 04.02.2011 without following relevant recruitment rules and fulfilling necessary legal and codal formalities. It is stated that the advertisement dated 17.10.2010 referred in offer letter of petitioners was actually published for recruitment made by former Chairman, IPO-Pakistan and the Cabinet Division vide letter No.20/IPO/2005-RA-IV dated 20.10.2010 asked the Chairman, IPO-Pakistan to stop the whole process of recruitment with observation that the Organization was facing financial constrained and cannot afford these fresh recruitments. However, the advertisement dated 17.10.2010 was withdrawn through a Corrigendum dated 23.10.2010. It is also stated that there was no test/interview conducted for any recruitment against such posts. There is no record available to support the contention of the petitioners. It was glared violation of relevant rules of recruitment. The selection was made at own whims and wishes without observing laws/rules and other codal formalities like short listing, test/interviews, IT competency test and minutes of selection committee, etc. It is also stated that instant case has no nexus with referred judgment dated 14.01.2011 of this court in C.Ps. Nos.D-1372 and 1373 of 2009, wherein, the recruitment was made purely on merits through a transparent procedure after advertising the posts and observing relevant government rules for the recruitment and this fact is also endorsed in para 9 of the referred judgment. It is further stated that as per claim of the petitioners that they were appointed on contract basis for a period of one year on probation from the date of appointment, which is extendable to one year more, but the contract period has already been expired, therefore, the contract employee cannot be foisted upon the employer. Therefore, under the aforementioned facts and circumstances, this petition is not maintainable and the same is liable to be dismissed.

4. We have heard the learned counsel for the parties at a considerable length and have perused the record. Learned counsel for the parties during the course of arguments, have reiterated their submissions as raised in the memo of petition as well as in the parawise comments, therefore, needs not to be repeated here, however, learned counsel for the petitioners in support of his submissions has relied upon the following case laws:-

(i) Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others reported as 2002 SCMR 1034;

(ii) Collector of Customs & Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others reported as 2004 SCMR 303;

(iii) Muhammad Rasheed v. Government of Punjab and others reported as 2006 SCMR 1082;

(iv) Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others reported as 2009 SCMR 412;

(v) Sohail Jabbar Malik v. Province of Sindh through Chief Secretary and 2 others reported as 2009 PLC (CS) 155 Kar;

(vi) Ghulam Murtaza & other v. Federation of Pakistan & others reported as SBLR 2011 Sindh 1161;

(vii) Rana Asif Nadeem v. Executive District Officer, Education, District Nanakana and 2 others reported as 2008 PLC (CS) 715 Lah;

(viii) Inayat Ullah Khan & Co. v. Secretary Food, Government of the Punjab and 2 others reported as 2006 YLR 656;

5. The petitioners have approached this court against their termination vide office order dated 14.04.2011 on the ground that their appointment letter dated 04.02.2011 has been cancelled by the present Chairman without assigning any reason, while they were appointed on contract basis for a term of one year on probation, which was extendable to one year more. It is their grievance that they were selected through a transparent process and, therefore, without assigning any reason and without hearing them, the appointment letters could not have been cancelled. Learned counsel for the petitioners besides other case law has relied upon the judgment dated 14.01.2011 passed by this court in C.P. No.D-1372 and 1373 of 2009 by stating that the judgment passed in said petitions are almost on similar facts and circumstances, which was reported in the case of Ghulam Murtaza & other v. Federation of Pakistan & others (SBLR 2011 Sindh 1161), wherein it was held that the petitioners after appointment through transparent process cannot be ousted from the job and once an appointment letter is issued, it cannot be withdrawn.

6. The appointment letter dated 04.02.2011 reveals that the petitioners were appointed purely on contract basis for period of one year on probation, which was extendable to one year more on satisfactory performance. There is no dispute with regard to the eligibility and competency of the petitioners for recruitment/appointment to the aforesaid posts, however, in the instant case, it is alleged that the entire process of recruitment/appointment was carried out in an illegal and unlawful manner and the appointment orders were issued by an incompetent and unauthorized person, as such, illegal orders cannot be protected by this court.

7. We have noticed that in the present case, applications were invited through an advertisement, which appeared in well reputed and widely circulated newspapers of the country. The petitioners possess the required qualifications cum experience as per criteria laid down in the advertisement. They have qualified and have been declared successful and then after observing all codal formalities, they were issued offer of appointment dated 18.01.2011 and 03.02.2011 respectively and finally on 04.02.2011, office order for the appointment of petitioners was issued and ultimately, they have submitted their duty joining report before the concerned authority on the same day. It also appears that after joining their duties, they have also been transferred by the Chairman, IPO-Pakistan vide order dated 11.02.2011 to Trade Mark Registry, Karachi. Thus, it appears that in doing so, the authority has taken decisive step in appointment of the petitioners; therefore, the same cannot be rescinded without hearing them or without showing any material against them. During the course of arguments, we have confronted the learned counsel for the respondents whether before passing the impugned order, the petitioners were heard or there was any adverse material against them for their appointment, he did not reply satisfactory. We again confronted to the learned counsel for the respondents to point out any dissimilarity of facts of the instant case with the case of Ghulam Murtaza & others (Supra), though he relied upon the comments, but failed to point out any dissimilarity of facts of the present case with the cited case. It is stated by the learned counsel for the respondents that the appointments of the petitioners were withdrawn vide order 14.04.2011 and before that, a corrigendum was also issued for withdrawing the advertisement dated 17.10.2010. We have perused the photocopy of corrigendum relied by the respondents but the said corrigendum neither contain any date of its issuance, nor it shows whether the same was published in any newspaper. It is surprising to note that in the comments respondents have taken the plea that appointments of the petitioners were made by a former Chairman illegally and unlawfully, but nothing on case file to show that any action was taken against him for such illegal appointments by the authority. It is also noticed that in the comments respondents have also taken the plea that the process of appointments of the petitioners were transparent in the case of Ghulam Muraza and others but on perusal of the judgment of the said case, it’s revealed that counsel for the respondents in the said case also opposed the petitions on the ground that recruitment process was not transparent. Thus, it appears that the stance of the respondents in the instant petition based upon contradictory pleas.

8. We have also noticed that appointment orders were issued on 04.02.2011, but the same was withdrawn by the respondents on 14.04.2011 much after the appointments of the petitioners without assigning any valid reason. Therefore, the ground as taken by the respondents in this case for cancellation of the appointments of the petitioners has no force. It is pertinent to mention here that in this case proper publicity and advertisement was made through Daily Dawn and the petitioners have applied for the requisite posts and after their interviews, they were selected/appointed, their physical tests were also conducted and they have joined their services before the concerned authority and after their joining, they have also transferred to the Trade Mark Registry, Karachi from Chairman, IPO-Pakistan vide order dated 11.02.2011. Therefore, under the circumstances, question of lack of transparency and irregularities with regard to the appointments of the petitioners is nothing but an afterthought as the respondents were bent upon to deprive the petitioners from their jobs in order to perhaps accommodate others. In the circumstances of the case, we are fortified with the cases of Sohail Jabbar Malik v. Province of Sindh and 2 others reported as 2009 PLC (C.S.) 155 and Ghulam Murtaza & others v. Federation of Pakistan & others reported as SBLR 2011 Sindh 1161, wherein the Divisional Bench of this court in similar circumstances, where offer letters were issued to the petitioners and later on same were withdrawn by the government, allowed the said petitions.

9. Keeping in view the judgment passed by this court in the case of Ghulam Muraza (Supra), we allow the petition and set-aside the impugned order dated 14.04.2011. Since the petitioners were appointed on contract basis for one year, which has been completed by efflux of time; therefore, under the changed circumstances, no question does arise for their reinstatement in service. However, under the circumstances, the petitioners would only be entitled to their salaries/payment from the date of their appointments. The petition is disposed of accordingly alongwith pending applications.

Karachi.

Dated:

JUDGE

Faizan A. Rathore/PA*