ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constt. Petition No.D-2836 of 2015

 

Date

               Order with signature of Judge

           

                                                        

                                                                 Present:

                                                                  Mr. Justice Zulfiqar Ahmad Khan &

                                                                  Mr. Justice Yousuf Ali Sayeed,

                     

Dated of hearing:  26-9-2017

 

Mr. Suhail Ahmed Khoso, Advocate for the petitioners a/w the petitioners

Mr. Noor Hassan Malik, AAG a/w Liaqat Ali Khaskheli, DEO (Primary)

Khairpur, the respondent No.4

                          

                                    12-09-2014

                                    O R D E R

 

 

Zulfiqar Ahmed Khan J.   Through the instant petition orders dated 5th June, 2015 reproduced as Annexure E, E-1, are impugned in terms of which the earlier posting orders of the petitioners for PST were withdrawn/cancelled. The counsel for the petitioners submits that the petitioners upon seeing advertisement for PSTs, JSTs and other posts applied for the respective jobs and after going through the requisite formalities, they were issued offer letters. However those offer letters were cancelled on 10.7.2006, against which act various petitions were filed which were allowed by the Hon’ble Bench of this High Court. Resultantly, contract offers for the period of three years were again made to the petitioners in the year 2015.  A review of offer letters clearly shows that these were made in pursuance of various Constitutional Petitions filed by the petitioners. Be that as it may, the petitioners joined their duties pursuant to the second offer letters and while they were performing their duties, through the impugned notices of June 2015 even those latter orders were withdrawn. A review of the impugned withdrawal notices reflects that those offers were withdrawn citing the judgment passed by the Hon’ble Supreme Court in CP No.186-K of 2013.

               The relevant paragraph-4 of the said judgment which forms basis of those withdrawal notices and has been reproduced in those orders, is also reproduced hereunder:-

                “4.          The record shows that certain appointments were undoubtedly made but on the orders of the Court. It further transpires that such orders were made with consent of the counsel representing the Department. However, the learned counsel was unable to refer to any judgment of the High Court which had allowed the petition of the successful candidates on merits. The consent order obviously cannot be cited as precedent, moreso even the scrapping of the examination was maintained by the High Court. Additionally, the Constitution Petition suffered from laches. By now, almost 8 years have been passed by when the selection was made and it is too late in the day to direct the appointment of the petitioners. The petition is, therefore, dismissed and leave declined.”  

               The learned counsel for the petitioners submitted that the Hon’ble Apex Court’s judgment in CP No.186-K of 2013 where appointments of certain other petitioners were denied is of no relevance to the case of present petitioners. Through a statement, counsel has filed full text of the Apex Court’s order dated 01.4.2015 which clearly shows that before the Hon’ble Supreme Court, was the matter of appointment of JST, PST, HST inducted through advertisements placed in Newspapers in the year 2007 where 3,75,000 candidates applied for the job, wherefrom 1,75,000 candidates passed the written test, and finally 2,050 candidates were selected from the merit list for appointment. However before any offers could be made to the selected candidates, the entire process was scrapped by the Provincial Government which resulted in those affectees filing a Constitutional Petition before the High Court of Sindh on 27.3.2012 seeking their appointments. It has been made clear by the learned counsel, which fact has also been endorsed by the learned AAG, that those affectees who filed those High Court’s petitions, as well as, preferred an appeal before the Hon’ble Supreme Court were different and those petitions arose from different circumstances. However as per paragraph-4 of the Apex Court’s judgment, since the entire exercise took almost 8 years from the date of selection of the candidates the Apex Court dismissed the leave.

               On the basis of the said Apex Court’s judgment, the present petitioners were served the impugned notices. The learned counsel for the petitioners submitted that those proceedings have nothing to do with the case of petitioners, who applied under different advertisement and were selected and were issued the offer letters pursuant to the orders made by this Court. Therefore there was no legitimacy in the withdrawal notices impugned herein.

               The learned AAG on the other hand, did not support this view. The learned AAG also raised an objection as to the maintainability of this petition, contending that even if it is admitted that the petitioners were offered employment, their cases are to be presented before the Service Tribunal.       It was next contended that even if the orders are recalled, the Department have no funds to make payment of salaries as the entire exercise was conducted under a World Bank Program. He further submitted that if there are any grievance, the petitioners should approach the competent Scrutinizing Committee created for such purposes. Furthermore, it was submitted by the learned AAG that three years contract period has already expired, therefore there is no legitimacy in the offer letters of 2015. Learned AAG placed reliance on 2012 CLC 16, 2013 PLC (C.S) 696 and 2016 PLC (C.S) 406.

               Heard the counsel, reviewed the material on record. Vide this Court’s order dated 12.9.2017 on the insistence of learned AAG time was granted for filing comments of respondent No.2, learned AAG suggested that comments of respondents No.5 are of material importance, however no such comments were filed and in the spirit of this Court’s order we are placing reliance on the comments filed by the respondent No.5 which per learned counsel for the petitioner are sufficient to adjudicate the controversy at hand.  Through these comments, it is reiterated that impugned notices were issued in the light of Apex Court’s judgment dated 01.04.2015.

               When the paragraph-4 of the said judgment is read in its entirety, it becomes evident that through the said judgment, the Apex Court declined to interfere in the case of appointments advertised in the year 2007, and since the orders were obtained almost 8 years thereafter, the Apex Court declined to interfere in the matter.

                While the case at hand is totally different. The petitioners are different, the advertisements are different and in this case, the earlier offer letters were issued to the petitioners in the year 2006 through the orders passed in various Constitutional Petitions. Since the only reason given in the impugned notice for withdrawal of offer is by placing reliance on paragraph-4 of the Apex Court’s judgment which is not applicable to the petitioners’ case and no other reasons have been given for withdrawal of their offer letters, we do not see any legitimacy in the impugned orders which in fact are in violation of the said Apex Court’s judgment and has been solely misconstrued to deprive the petitioners from their lawfully obtained employments. With regard to the objection as to maintainability, it is observed that the employment offers to the petitioners was temporary, hence they cannot be regarded as civil servants.

                In the given circumstances, the impugned notices are set-aside and the earlier offer made in the year 2015 for the contract employment for the terms of three years offered to the petitioners are upheld. The petition stands disposed of in the above terms with no order as to costs.

                                                                                                        JUDGE

 

                                                                           JUDGE

Suleman Khan/PA