ASIM KHAN and others vs ZAHIR SHAH and others

' CH. IJAZ AHMED, J.--- The brief facts out of which the present petition arises are that respondent No,1 Zahir Shah and 11 others were appointed as PTC teachers by respondent No,13 vide .Its order, dated 21-11-2005 on the recommendation of the Departmental Selection Committee in accordance with the rules and regulations of the petitioners department. After initial verification of their testimonials including domicile certificates from the concerned quarters, respondents 1 to 12 were allowed to resume charge of their posts at the respective places. Respondents had submitted their arrival reports to the competent authority in terms of their appointment letters. Respondent No,13 subsequently, had withdrawn their appointment letters vide its orders dated 23-2-2006 on the ground that they were holding domiciles of category "B", a term of first impression without serving any show-cause notice and in violation of principle of natural justice. Respondents Nos.1 to 12 being aggrieved filed Constitution Petition No,254 of 2006 in the Peshawar High Court on 28-2- 2006. The learned High Court accepted their constitution petition vide impugned judgment dated 11-10-2006. Hence the present petition.

2. Learned counsel of the petitioners submits that competent authority had withdrawn their domiciles in accordance with law after providing proper hearing to the respondents in accordance with law. Respondent No,13 thereafter had withdrawn their appointments in terms of the order of the competent authority as the respondents did not have valid domicile certificate qua category "A" which they had submitted along with their applications and subsequent orders of the competent authority as mentioned above describing them holders of category "B" domiciles is the result of third degree method adopted by respondent No,13 under the influence of some influential persons whose relatives could not succeed in the test and interview held for the posts. He further submits that learned High Court has erred in law to entertain the constitutional petition under Article 199 of the Constitution of Pakistan, 1973 in presence of alternative remedy available to the respondents Nos.1 to 12 under the relevant law before the higher authority. Therefore, impugned judgment of the High Court is not sustainable in the eye of law.

3. We have given our anxious consideration to contentions of the learned counsel for the petitioners and perused the record. It is better and appropriate to reproduce grounds E&F of the constitutional petition reply of the respondents Nos.13/14 in written statement to the grounds E&F:- ' Relevant grounds of E&F of the constitution petition.

"(E) That respondent No,1 has no legal justification to deprive petitioners of their employment which they got on merit after observing codal formalities and the same was acted upon and carried into effect and vested rights accrued in their favor which could not be taken away under the principle of locus poenitentiae.

(F) That the petitioners have been condemned unheard and the impugned order has been passed at their back without providing them a fair opportunity of defence, personal hearing and notice.

Thus, the impugned order is unlawful, mala fide and of no legal effect, being violative of principle of natural justice.

' Reply ground (e) in written statement

(c) Incorrect, because the petitioners were asked by the APA and Inquiry Committee which has constituted by PA to clarify their position but they failed to do so."

' It is pertinent to mention here that present respondents Nos.13 and 14 ('respondents Nos.1 and 2 in the writ petition) have not given reply to the ground "F" as evident from page 52 of paper book. The learned counsel of the petitioners have failed to point out any documentary evidence qua the notice issued by the respondent No,13 to the respondents Nos.1 to 12 before withdrawing their appointment letters vide order, dated 23-2-2006. It is an admitted fact that respondents 1 to 12 secured their appointment qua the posts in question as PTC teachers after the recommendations of the Departmental' Selection Committee duly constituted by the competent authority. Therefore, respondents 1 to 12 had secured vested rights as law laid down by this Court in Army Welfare's case 1992 SCMR 1652. It is a settled principle of law that vested rights accrued to the respondents Nos.1 to 12 could not be taken back or withdrawn without fulfilling the requirement of principle of natural justice. As the impugned order passed by respondent No,13 by withdrawing their appointment letters in violation of principle of natural justice, therefore, learned High Court was justified to accept their constitutional petition. It is settled principle of law that principle of nature justice must be read in each and every statute unless and until the same is excluded from the wording of the statute itself as law laid down by this Court in Fazlur Rahman's case PLD 1964 SC 410 and Faridsons' case PLD 1961 SC 537. Respondent No,13 has passed the impugned order of withdrawing the appointments of respondents 1 to 12 in violation of principle of natural justice. Therefore, impugned order before the High Court was hit by principle of natural justice and was without lawful authority as law laid by this Court in various pronouncements. Reference can be made to the following judgments:-

(1) Zakir Ahmed's case PLD 1965 SC 90, (2) Pakistan and others v. Public-at-large and others PLD 1987 SC 304, (3) Pakistan Chrome Mine's case 1983 SCMR 1208.

' The aforesaid proposition of law is also supported by the following judgments:--

(1) Ahmad Hassan's case PLD 1992 Pesh. 1, (2) Khan Bahadur's case 1992 CLC 395, (3) Farrah Deedar's case 1986 MLD 2429 and (4) Shushma's case 1992 CLC 895.

' The second contention of the learned counsel of the petitioners that the learned High Court has erred in law to entertain the constitutional petition under Article 199 of the Constitution in presence of alternate remedy has also no force in view of the law laid down by this Court in the following judgments:--

(1) Murree Brewery's case PLD 1972 SC 279, (2) Messrs Pak Saudi Fertilizer Ltd.'s case 2001 SCMR 777 and (3) Hudaibia Textile Mills' case 2001 SCMR 209.

' It is settled principle of law that creation of classification among domiciled candidates has declared unreasonable and discriminatory by B this Court in various pronouncements. See Rifat Parveen's case 1981 SCMR 1002 and D.P. Joshi's case AIR 1955 SC 334. It is an admitted fact that respondent No,13 had passed the impugned order of withdrawing appointment letters of respondents 1 to 12 merely on the ground that respondents Nos.1 and 12 have secured their appointment under the influence of politicians and impugned order was passed as mentioned above without holding proper enquiry in accordance with law. Therefore, the impugned order of the respondent No,13 is without lawful authority as law laid down by this Court in Gohar Masood's case 2001 SCMR 1128 and Farah Deedar's case 1986 MLD 2429.

4. In view of what has been discussed above we do not find any infirmity or illegality in the impugned judgment of the. Learned High Court. Even otherwise the learned counsel of the petitioners has failed to raise any question of public importance. It is also a settled principle of law that constitutional jurisdiction is equitable jurisdiction. In view of peculiar circumstances of this case we are not inclined to exercise our discretion in favor of the petitioners as law laid down by this Court in various pronouncements. See Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Muhammad Saifullah Khan's case PLD 1989 SC 166. In view of the aforesaid circumstances this petition has no merit. Same is dismissed and leave refused.