in the peshawar high court, peshawar · latif khaisori, bashir khan wazir, faridullah kundi, qaisar...

Ijaz

1

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

Judicial department Writ Petition No.1392-P/2013

Naimatullah

Vs

Chairman Worker Welfare Board and others

J U D G M E N T

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

Ijaz

2

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.

Ijaz

3

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

4

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.

Ijaz

5

S.No

Petition No & Titled

Qualification, Post &

Pay Scale

Date of

Appointment

Contract/Re-

gularized

Reason for

Termination

1

W.P No.1392-P/2016

Naimat Ullah Vs

Govt:

MA & M.Ed, Principal

in BPS-18

21.01.2013 Contract Poor Performance in

probation.

2

W.P No.2062-

P/2013, Muhammad

Arshad Vs Govt:

MA, B.Ed, Teacher in

BPS-14

15.06.2010 Regularized not qualified for the

post

3

W.P No.2729-

P/2013, Miss Asfa

Gul Vs Govt:

Teacher in BPS-14 17.07.2012 Contract no more required

4

W.P No.296-A/2014,

Nazli Kanwal Vs

Govt:

MA.B.A,B.Ed, F.A

(CT), Teacher in

BPS14

27.09.2012 Contract not authorized for the

same

5

W.P No.1702-

P/2014, Zafrullah Vs

Govt:

Teacher in BPS-17 12.11.2013 regularized without any reason

6

W.P No.1832-

P/2014, Matiullah Vs

Govt:

M.A/B.Ed , Principal

in BPS-18

21.01.2013 Regularized poor performance and

embezzlement

7

W.P No.3-M/2014,

Murad Ali etc Vs

Govt:


8

W.P No.92-A/2015,

Hina Bukhari Vs

Govt:

Teacher in BPS-14 31.03.2012 Contract poor performance &

3rd division in BA

9 W.P No.94-A/2015,

Lubna Arfan Vs Govt:

M.A, Teacher in BPS-

14

21.01.2013 Contract no more required

10

W.P No.188-A/2015,

Muhammad Fahad

Saeed Vs Govt:

Teacher in BPS-14 01.10.2012 Contract appointment without

authority

11 W.P No.195-B/2015,

Ihsanullah Vs Govt:

Principal in BPS-18 21.01.2013 Contract without any reason

12 W.P No.397-D/2015,

Samiullah Vs Govt:

Subject Specialist

Economics in BPS-17

21.01.2013 Contract terminated in

probation period

13

W.P No.411-D/2015,

Muhammad Farooq

Vs Govt:

Naib Qaid in BPS-2 07.03.2012 Contract as per clause IV of his

appointment order

14

W.P No.422-D/2015,

Asadullah Anwar Vs

Govt:

M.A, B.Ed,

Elementary Teacher

in BPS-14

01.10.2012 Contract appointment without

authority

15

W.P No.431-D/2015,

Miss Nabeela

Rahman Vs Govt:

B.A, M.A (Urdu)

,Teacher in BPS-14

28.09.2012 Contract on the ground of long

absence

16

W.P No.637-B/2015,

Najeebullah etc Vs

Govt:

Superintendent in

BPS-16

21.01.2013 Contract appointment letter

signed by other than

secretary

17

W.P No.667-B/2015,

Waheed Khan Vs

Govt:

BSC & B.Ed, Teacher

in BPS-14

06.02.2012 Contract Irrelevant Qualification

18

W.P No.668-B/2015,

Mohammad Khalil Vs

Govt:

M.A, B.Com, B.A

Additional & B.Ed,

Teacher in BPS-14

08.03.2012 Contract Irrelevant Qualification

Ijaz

6

19

W.P No.669-B/2015,

Zaib Ullah Vs Govt:

Principal in BPS-17 14.01.2013 Contract no more required

20

W.P No.672-B/2015,

Abdul Jamal etc Vs

Govt:

Teacher in BPS-14 22.03.2012,

02.02.2012 &

27.08.2012

Contract Irrelevant Qualification

21

W.P No.687-D/2015,

Muhammad Tahir

Shah

Junior Instructor in

BPS-14

16.05.2012 Contract termination in

probation period

22

W.P No.851-D/2015,

Muhammad Jamil Vs

Govt:

Driver in BPS-4 02.02.2012 Contract no more required

23

W.P No.881-A/2015,

Shafiq-ur-Rehman Vs

Govt:

BBA (Hons) with B.Ed,

Elementary Teacher

in BPS-14

15.02.2012 Contract as per clause IV of his

appointment order

24

W.P No.159-B/2014,

Miss Nazia Jehan etc

Vs Govt:

Teacher in BPS-14 21.01.2013 Contract without any reason

25

W.P No.20-B/2016,

Muhammad Ullah Vs

Govt:


BPS-14

31.10.2011 Contract poor performance

26

W.P No.21-B/2016.

Mst:Rohi Kalsoom Vs

Govt:


27 W.P No.22-B/2016,

Waqar Khan Vs Govt:


28

W.P No.23-B/2016,

Barkat Ullah Vs Govt:

Sanitary Worker in

BPS-2

09.09.2011 Contract reinstated but has not

been allowed to

assumed charge

29

W.P No.60-B/2016,

Bilal Khan etc Vs

Govt:

Teacher in BPS-14 &

BPS-9

19.07.2012,

22.04.2011,

28.09.2012,

17.07.2012,

18.07.2012 &

28.12.2011

Contract due to closing of 2nd

shift

30

W.P No.65-B/2016,

Noor Jehan Khan etc

Vs Govt:

Class-IV in BPS-2 31.03.2012,

25.03.2011 &

21.01.2013

Contract due to non adjustment

relieved from service

31 W.P No.104-D/2016,

Baitullah etc Vs Govt:

Teacher in BPS-14 20.04.2011 &

28.04.2011

Contract no more required

32

W.P No.180-B/2016,

Muhammad Sharif

Khan Vs Govt:

B.A, B.Ed, M.A &

M.Ed, Teacher in BPS-

14

30.03.2012 Contract without any reason

33 W.P No.201-A/2016,

Azam Shah Vs Govt:

Naib Qasid in BPS-2 09.07.2011 Contract appointment without

authority

34

W.P No.202-D/2016,

Malik Jamshed etc Vs

Govt:

Lab Attendant in BPS-

2, Shop Assistant in

BPS-6, Junior

Instructor in BPS-14,

Laboratory Assistant

in BPS-6, Junior Clerk

in BPS-7

25.02.2012,

10.05.2012,

24.02.2012,

07.11.2013,

29.08.2013,

29.02.2012 &

21.01.2013

Contract as per clause IV of his

appointment order

Ijaz

7

35

W.P No.203-D/2016,

Muhammad Naeem-

ul-Hassan Vs Govt:

Teacher in BPS-14

02.04.2012

Contract

as per clause IV of his

appointment order

36

W.P No.228-D/2016,

Farman Saadullah Vs

Govt:

Commerce Teacher in

BPS-14

11.06.2012

Contract

without any reason

37

W.P No.258-D/2016,

Muhammad Ali Siraj

Vs Govt:

Junior Instructor

(Electrical) in BPS-14

18.01.2013 Contract as surplus employee

38

W.P No.262-B/2016,

Jahanzaib Khan Vs

Govt:

Teacher in BPS-14 20.04.2011 Contract being 3rd division in

B.A

39

W.P No.302-B/2016,

Wajid Ullah Khan Vs

Govt:


B.A

40 W.P No.378-B/2016,

Sajjad Khan Vs Govt:

Teacher in BPS-9 13.09.2011 Contract due to closing of 2nd

shift

41

W.P No.379-B/2016,

Atiq Ullah etc Vs

Govt:

Teachers in BPS-14 19.07.2012 Contract due to closing of 2nd

shift

42

W.P No.380-B/2016,

Imranullah Wazir etc

Vs Govt:

Teacher in BPS-14 22.04.2011 &

16.07.2012

Contract as surplus employee

43

W. P No.381-B/2016,

Bashir Ullah etc Vs

Govt:

Teacher in BPS14 22.04.2011 &

11.02.2012


44

W.P No.382-B/2016,

Imam Ghulam etc Vs

Govt:

Teacher in BPS-14 13.07.2012,

21.04.2011,

18.07.2012 &

11.02.2012


45

W.P No.383-B/2016,

Fidaullah Fida Vs

Govt:


shift

46

W.P No.392-B/2016,

Sher Afzal Khan Vs

Govt:

Teacher in BPS-14 28,04.2011 Contract due to closing of 2nd

shift

47

W.P No.393-B/2016,

Muhammad Noor Vs

Govt:

Junior Clerk in BPS-7 24,02.2012 Contract due to closing of 2nd

shift

48

W.P No.394-B/2016,

Zakir Ullah Vs Govt:

Junior Clerk in BPS-7 02.04.2012 Contract due to closing of 2nd

shift

49

W.P No.395-B/2016,

Zia Ullah Vs Govt:


shift

50

W.P No.398-B/2016,

Muhammad Ishaq

etc Vs Govt:

Care Taker in BPS-9 &

Junior Clerk in BPS-7

28.09.2012 &

27.09.2012

Contract School is without the

approval of governing

body of WWF

Ijaz

8

51

W. P No.399-B/2016,

Muhammad Rahman

etc Vs Govt:

Teacher in BPS-14,

Subject Specialist in

BPS-17 & Computer

Instructor in BPS-16

28.04.2011,

18.01.2013,

06.08.2012,

06.08.2012 &

27.09.2012

Contract School is without the

approval of governing

body of WWF

52 W.P No.494-B/2016,

Saddam Khan Vs Govt:


BPS-14

31.10.2011 Contract poor performance

53

W.P No.502-D/2016,

Manohar Anam Raza

Vs Govt:

Teacher in BPS-14 21.01.2013 Contract without any reason

54 W.P No.509-B/2016,

Haider Khan Vs Govt:


BPS-14


55

W.P No.790-B/2016,

Shams Qamar Ali

Shah Vs Govt:

B.Ed Teacher in BPS-

14

28.02.2012 Contract as per clause IV of his

appointment order

56

W.P No.945-

B/2016,Hikmatullah

Vs Govt:

Account Assistant in

BPS-14

21.01.2013

Contract

reinstated but no

charge has been

assumed to him

57 W.P No.979-D/2016,

Ehsanullah Vs Govt:

Junior Instructor BPS-

14


58

W.P No.2167-

P/2016, Mir Aslam Vs

Govt:

Naib Qasid in BPS-2 23.05.2011 Contract as per clause IV of his

appointment order

59

W.P No.4746-

P/2016,Mushahid

Khan Vs Govt:

EST in BPS-9 18.01.2013 Contract due to closing of 2nd

shift

60 W.P No.78-D/2017,

Hidayatullah Vs Govt:

Class-IV in BPS-2 17.02.2012 Contract being overage

61

W.P No.97-

B/2017,Attaullah

Khan Vs Govt:

Library Attendant in

BPS-5


62

W.P No.156-B/2017,

Muhammad Ibrar Vs

Govt:


B.A

63

W.P No.243-D/2017,

Muhammad Umar

Usman Vs Govt:

Teacher in BPS-14 16.02.2012 Contract poor performance

64

W.P No.515-P/2017,

Waheed Akhtar Vs

Govt:

Master Degree in

Science, B.Ed, DAE

(Electrical), Lecturer

Physics in BPS-17


65

W.P No.1078-P-2017,

Karimullah Vs Govt:

First class Master,

B.Ed, Subject

Specialist in BPS-17

18.01.2013 Contract being unqualified

66

W.P No.1079-P-

/2017, Amjid Ali Vs

Govt:

First class Master,

M.A (Arabic) M.S

(Islamic Studies) P.T.C

& B.Ed , Elementary

27.08.2012 Contract being in the probation

period and over and

above the sanctioned

strength.

67

W.P No.1274-

P/2017, Akhtar Hayat

etc Vs Govt:

Teachers in BPS-14 07.09.2012,

07.11.2012 &

12.10.2012

Contract without any reason

68

W.P No.1388-

P/2017, Shakirullah

Vs Govt:


shift

69

W.P No.1533-P-2017,

Ahmad Raza Vs Govt:

M.A, B.Ed, Teacher in

BPS-14

19.07.2012 Contract Salaries not released

on the pretext of as

surplus employee

Ijaz

9

70

W.P No.1750-

P/2017, Mubashir

Nazar Vs Govt:

Teacher in BPS-14

19.07.2012

Contract

being in the probation

period and over and

above the sanctioned

strength.

71

W.P No.3284-

P/2017, Usman

Farooq Vs Govt:

Teacher in BPS-14 26.09.2009 Regularized being 3rd division in

B.A

72

W.P No.359-B/2016,

Maulvi Hafiz

Muhammad Saeed

Khan Vs Govt:

M.A Arabi &

Islamiyat , BA,

Teacher in BPS-14

17.07.2012 Contract Salaries not released

from September 2013

to 15.07.2015 and

refused to allow the

petitioner to join duty.

73

W.P No.525-D/2015,

Saqib Ali Vs Govt:

Teacher in BPS-14

05.06.2012

Contract

no more

required/irrelevant

qualification (two

termination order)

74

W.P No.377-B/2016,

Sher Muhammad etc

Vs Govt:

Teachers in BPS-14

and BPS-17

11.02.2012,

16.01.2013,

09.09.2012,

20.02.2012,

16.02.2012,

28.02.2012 &

20.07.2012

Contract As the School was

closed being without

the approval of

governing Body of

WWF.

75

W.P No.2230-

P/2017, Ayub Khan

Vs Govt:

Vice Principal in BPS-

17

03.04.2012

(on fixed pay)

04.06.2013

(Converted

from fixed pay

to contract)

Contract on telephone call he

was terminated

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

Ijaz

18

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)

1027.

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

19

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

20

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

Ijaz

21

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.

Ijaz

22

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.

04.10.2017.

J U D G E

J U D G E

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

in the peshawar high court, peshawar · latif khaisori, bashir khan wazir, faridullah kundi, qaisar...

Documents