RAMEEZ SHAIKH Versus PROVINCE OF SINDH through Home Secretary, Government of Sindh Ms. Rehana Nazeer Gujjar
ORDER
Through this petition, Petitioner has claimed that he applied for the post of Police Constable in police department; after completion of all requisite formalities, appointment letter was issued to him. He then also completed remaining formalities i.e. medical fitness and verification.
2. The comments filed by respondents Nos.3 and 4 are not disputing genuineness of appointment letter as well as documents submitted by the Petitioner. Further, as per comments, inquiry was conducted with regard to the criminal activity of the Petitioner, such inquiry was answered in favour of the Petitioner, but on the plea that Petitioner failed to join duties within stipulated period, hence was not allowed joining.
3. Petitioner has contended in paragraph-5 that he after completion of all formalities, had approached to Sheet Clerk of that branch, who was collecting the record, but he (Sheet Clerk) did not allow him to join his duty whereas comments shows that such sheet clerk was transferred and Petitioner failed to join his duty within stipulated period. Accordingly, his appointment letter was withdrawn. It is also matter of record that this petition is pending since 2015.
4. Contention raised in comments of respondent No.4 is not appealable. Besides plea of learned A.A.G. is that there are five other candidates, whose appointment letters were also withdrawn on their failure to join their duties within stipulated period, hence if the contention of the petitioner is accepted, such five other candidates would also agitate for same relief.
Without any hesitation shall add that when some thing is earned or rewarded after due process, it creates a 'legal right' which the giver even cannot withdraw or cancel except following the due process for withdrawal/cancellation. Such due process must match the test, defined by honourable Apex Court in the case of Ishtiaq Ahmed v. Hon'ble Competent Authority (2016 SCMR 943). Similarly, 'once an appointment letter/ order is issued after completion of all codal formalities, it vests a legal right, which (legal right) cannot be withdrawn or cancelled except following the due process which must include a right of hearing because it (withdrawal/cancellation) shall result in taking away an earned right. The reference in this regard can well be made to the case of Mst. Basharat Jehan v. D.G, Federal Government Education and others 2015 SCMR 1418
18. Under these facts and circumstances a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service. In the case of Ghulam Murtaza v. Federation of Pakistan (2011 PLC (C.S) 709) passed by learned Division Bench of Sindh High Court placing reliance on the case of Jabbar Malik v. Province of Sindh and others, last mentioned judgment was also upheld by this Court in Civil Petitions Nos.426-K to 436-K of 2008, it was held that once a person is appointed after fulfilling all the codal formalities, appointment letter is issued, it was held that a vested right is created and appointment letter could not be withdrawn. Similar view was taken in the earlier decision of the same Court by another learned Bench reported as Muhammad Farooq Memon v. Government of Sindh (1986 CLC 1482).
The appearance of the petitioner in required tests or examination prima facie fads the chances of his having lost interest in such earned right (joining the duties) hence plea of petitioner prima facie appears to be caring weight that he has appeared/contacted with Sheet Clerk. Even otherwise, it is not a case of the respondents that before withdrawing/ canceling the appointment letter, the petitioner was served with any notice particularly when in response to appointment letter the petitioner did under go requisite fitness test and verification. Therefore, the respondents were not legally justified to withdraw / cancel the appointment letter even on mere presumption or assumption that petitioner lost his interest in joining his duties. A vested right shall not be destroyed on mere presumption or assumption but following the due process only can only result in exercise of such authority, as was held in the case of Mst. Basharat Jehan supra that:--
20. Once a right is accrued to the appellant by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence (One may refer to Director, Social Welfare, N. W.F.P, Peshawar v. Sadullah Khan (1996 SCMR 1350).
As regard the plea of five other candidates, it would suffice to say that one legally cannot be denied of his/her right on the ground that others may also agitate their case because the law demands and dictates in giving rights rather denying thereof on mere technicalities or assumptions. Each and every case has to be dealt according to its own merits and if the law permits a right the same cannot be with-held or denied on such count or other alike pleas. However, those five candidates did not file any petition after withdrawal of their appointment letter(s) therefore, vigilance of the petitioner in restoring an already earned right would not bring the respondents under any obligation to deal the case of those five candidates as that of petitioner, however, this issue can be decided in separate petition, if filed by them which too independently.
5. Perusal of pleadings filed by all respective parties, suffice to say that petitioner was qualified for the post of Police Constable, appointment letter was issued subject to verification and all formalities were completed and only on the ground of non-joining of his duty within stipulated period, which is denied; Petitioners petition is pending since 2015, which shows that there is something malice of the concerned person who was responsible to take/receive joining of the Petitioner particularly when respondent No.4 has claimed that said sheet clerk has been transferred in that period. Accordingly, petition is allowed as a result that the Petitioner shall be given appointment letter/order afresh with joining report within a period of fifteen (15) days of this Court with compliance report. In case of failure, contempt proceedings can be initiated against concerned officer.
This petition stands disposed of in the above terms.
ZC/R-31/Sindh Order accordingl