MUHAMMAD JAWAD Versus GOVERNMENT OF KHYBER PAKHTUNKHWA

MUHAMMAD GHAZANFAR KHAN, J.--- Through the instant constitutional petition, petitioners seek the constitutional jurisdiction of this Court with the following prayers;

"That on acceptance of this writ petition, the impugned letter No. 8978-82 dated 11.09.2014, issued by the D.E.O (Female) D.I. Khan (respondent No.5), may please be cancelled by declaring the same as void, illegal, unlawful, without lawful authority, ultra-vires and having no binding effect upon rights of petitioners; and thereby appointment order of the petitioners may graciously be declared to be operative."

2. Brief facts of the present case are that District Education Officer (Female) D.I. Khan/respondent No.4 published an advertisement in the Daily Mashriq dated 24.04.2014, wherein posts of Junior Clerks along with other vacancies were advertised. The petitioners having qualified applied for the posts of Junior Clerks. On 11.08.2014, the respondent No.4 nominated a Selection Committee and in this respect a tentative merit list was prepared and thereafter final merit list was also prepared. After written/screening test, shortlisted candidates were called for typing test; that after passing the typing test, the respondent No.4 issued separate appointment letters to successful candidates including the petitioners. In the meantime respondent No.4 availed Ex-Pakistan Hajj Leave and the respondent No.2 vide Notification No. So (S/F) E&SE/4-16/2014/DEO (F) D.I.Khan dated 03.09.2014 assigned the respondent No.5 with the additional charge of D.E.O (Female) D.I.Khan till her arrival from Hajj. That the respondent No.5 having additional charge of the said post issued a letter bearing No. 8978-82 dated 11.09.2014, whereby he incompetently withdrawn the appointment letters issued in favour of petitioners and others by a competent and duly authorized officer (Respondent No.4). On the basis of the impugned order the petitioners have been restrained from their official duties. The petitioner being aggrieved from the impugned order/letter dated 11.09.2014 has left with no other option but to invoke the constitutional jurisdiction of this Hon'ble Court, hence the present petition.

3. Arguments heard and record perused.

4. Perusal of record reveals that the petitioners were appointed after going through the agony of test and interviews and were selected for the posts mentioned in their respective appointment letters. The officiating D.E.O. (Female) without assigning any reason and without fulfilling codal formalities has withdrawn the appointment letters of the petitioners through the impugned order.

5. The controversy herein give rise to the proposition that whether a person having officiating charge just for some time in the office of Officer Incharge can pass an order like the one in hand, that too without fulfilling the codal formalities. After issuance of appointment orders, the petitioners are governed under the Service Laws and they cannot be deprived of their vested rights without adhering to the observance of codal formalities. The respondent No.5 has recalled the appointment letters of the petitioners with one stroke of pen which is patently illegal, void ab initio and has no legal affect.

6. The person with officiating charge cannot exceed his limits and would be restricted only to the duties assigned to him for a temporary period. The respondent has skipped over the jurisdiction vested in him under the law by passing illegal orders without assigning any reason and without fulfilling codal formalities. Secondly, before passing the impugned orders, he never bothered to order any inquiry, issue a charge sheet or served a show-cause notice on the petitioners, all these things are missing in the order, which is illegal and against the norms of justice.

7. In the light of above, we are left with no other option but to accept the instant writ petition, declare the impugned order/letter as illegal, without lawful authority and is hereby set aside. Consequently the appointment orders of petitioners are held to be validly issued and they are legally appointed. The respondent No.5 in his officiating capacity was not competent to issue the impugned order. The appointment letters of the petitioners are still operative and in field.

ZC/445/P Petition allowed.