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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
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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.
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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
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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.
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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:
Teacher in BPS-14 20.02.2012 Contract no more required
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
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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:
Junior Instructor in
BPS-14
31.10.2011 Contract poor performance
26
W.P No.21-B/2016.
Mst:Rohi Kalsoom Vs
Govt:
Teacher in BPS-14 16.07.2012 Contract no more required
27 W.P No.22-B/2016,
Waqar Khan Vs Govt:
Teacher in BPS-14 18.07.2012 Contract no more required
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
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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:
Teacher in BPS-14 12.08.2010 Contract being 3rd division in
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
Contract no more required
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
Contract no more required
45
W.P No.383-B/2016,
Fidaullah Fida Vs
Govt:
Teacher in BPS-14 17.07.2012 Contract due to closing of 2nd
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:
Teacher in BPS-14 06.08.2012 Contract due to closing of 2nd
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
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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:
Junior Instructor in
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:
Junior Instructor in
BPS-14
21.01.2012 Contract no more required
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
14.01.2013 Contract without any reason
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
06.02.2012 Contract no more required
62
W.P No.156-B/2017,
Muhammad Ibrar Vs
Govt:
Teacher in BPS-14 22.04.2011 Contract being 3rd division in
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
19.09.2013 Contract without any reason
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:
Teacher in BPS-14 19.07.2012 Contract due to closing of 2nd
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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