BASHARAT HUSSAIN Versus PROVINCIAL GOVERNMENT

MALIK HAQ NAWAZ, J.--- The brief facts and averments of the instant writ petition are that the petitioners were appointed by respondent No.5 after having been recommended by DPC/DSC vide office order No.Sec-LG-2(1)/2010 dated 6th May, 2011 and as mentioned in para-2 of the writ petition, they continued their services till 30th September 2013. On 01-10-2013, respondent No. 5 issued an office order bearing No. SO-1-1/(28)/2011 dated 01-10-2013, whereby the appointments of the petitioners were declared null and void.

2. The learned counsel for the petitioners raised many fold grounds in writ petition and also during arguments. The learned counsel vehemently contended that act of respondents and impugned order is discriminatory one and request to be set aside as no show-cause notice before termination was served upon the petitioners no any opportunity was provided to the petitioners, which is against the concept of natural justice. The learned counsel stated further that on 04-08-2010 by means of an office order No. SEC-LG-2(75)/2009-10 dated 4th August 2010, about 21 contingent paid employees were adjusted on regular basis, who are still enjoying the benefits of regular service. The learned counsel lastly submitted that one Nisar Ahmed a contingent paid employ was again adjusted on 2nd July 2013 vide office order No.SEC-LG-2 (30)/2011. The petitioners filed appeal before the concerned authorities and respondent No. 1 restored the services of the petitioners as contingent paid employees but despite of various appeals to all the available forum, their fate is still hanging on.

3. On the other hand the learned Assistant Advocate General refuted the contentions raised at bar by the learned counsel for the petitioners and submitted that all these appeals were made illegal and without completion of legal formalities. A high level inquiry was constituted to examine the legality/propriety of all these appointments by the respondent No.1, consisting of Mr. Zaffar Waqar Taj (Principal Secretary to Governor), Mr. Mansoor Alam (Deputy Secretary Finance) and Mr. Muhammad Ibrahim (Secretary Finance) as Chairman. The high level inquiry committee submitted its report to respondent No.1. On the basis of findings/recommendations of inquiry committee respondent No.1 decided to cancel all the above referred appointments. Per learned Assistant Advocate General any person, whose appointment was made in violations of rules/regulations cannot take the plea that no show cause notice was issued to him before his termination. The learned Assistant Advocate General relied on 2003 SCMR 1269, 2012 SCMR 673 and Writ Petition No. 20/2017 of this Court in support of his contentions.

4. We heard both the sides and perused the record of the case. The petitioners as evident from the inquiry report were appointed/adjusted without any codal formalities and as evident even concern of finance division was not -- and the inquiry committee recorded that disciplinary proceedings under Civil Servant Act (Efficiency and Discipline) Rules, 2011 be initiated against the decorum/members of DPC/SC.

5. After receipt of the inquiry report respondent No. 1 ordered that the illegal appointments be cancelled, which orders were accordingly cancelled by respondent No. 5. For ready reference findings/ recommendations of inquiry committee are reproduced below:-

FINDINGS:

However, after thorough examination of available record, the findings of the inquiry are as under:-

(a) It revealed that 27 daily wages/contingent paid staff were adjusted/appointed as per detail given vide at "F/E".

(b) No codal formality/procedure was adopted for the said recruitment i.e. advertisement, test and interview. However, DPC/SC was just a formality "F/F".

(c) It is also no clarified that the regularization is made of the contingents paid staff or from open market due to non-provision of records.

(d) All the appointment/adjustments were made against the posts created by the Secretary LG and RD Departments G-B without the concurrence of Finance Department, G-B.

(e) Ban on recruitments was imposed by the government by adopting austerity measures during the financial year i.e. 2011-2012 vide Finance Division Islamabad O.M No. F-7(2) Exp-iv/2011 dated 17th August, 2011.

(f) The appointments/adjustments were made on the recommendations of Deputy Commissioner/Administrator District Council Gilgit.

Recommendations:

The inquiry committee makes following recommendation on the basis of inquiry and resultant findings for consideration of the competent authority:-

The AGPR office may be directed to stop the pay of 27 illegal regularization/appointed staff immediately.

The committee strongly recommended that all such appointments/regularization made in LG & RD department may be treated null and void.

Disciplinary proceedings under Gilgit-Baltistan Civil Servants Act (Efficiency and Discipline) Rules, 2011 may also be initiated against Chairman as well as members of DPC/SC.

6. As discussed above no codal formalities were fulfilled for appointment of the petitioners. Now it is a settled proposition of law that, where a mandatory provision of law is not fulfilled, then the entire proceedings, which will follow, would be nullity in the eyes of law. The appointments when made in contravention of prescribed procedure, no legal right, whatsoever had been created in favour of the petitioners and the competent authority may remove such employees without assigning any reason and even without any show-cause notice. We in without jurisdiction cannot pass any order in favour of the petitioners to convert their services into regular one or even to recall the order of their termination. We have also examine the appointment order of one Nisar Ahmed who has appointed as a Dispatcher (BPS-07) but his appointment by the competent authority cannot be come for rescue of the petitioners as therein. Case is altogether is on different footings.

7. As discussed above if an order is itself illegal it confers no perpetual right and can be withdrawn without any show-cause notice. We are at pain to observe that the petitioners and many others are easy prey to be hunted down by the corrupt Mafia because the persons sitting in the helm of affairs known that despite their mass level to be taken to task. The authorities should impose major penalties on the delinquent officials found guilty of misconduct and corruption and their cases be referred to anti-corruption institution for registration of criminal cases and their trial, which is not being done.

8. The original order of the petitioners dated 01-10-1013 is self explanatory and cannot be termed as illegal. The Writ Petition No.47/2016 is meritless and dismissed accordingly.

ZC/225/GB Petition dismissed.