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Writ Petition No.28 of 2012, decided on 23rd June, 2014.

----Arts. 71 & 81---Writ petition---Civil service---Termination of service---Petitioner was appointed on permanent basis, on probation for a period of one year---Petitioner successfully completed his probation period, but his services were terminated without serving on him any show-cause notice and without hearing him before termination of service---Petitioner, after getting the appointment letter, got the legal right, but same was infringed by terminating him from service unheard---Authorities, though had power to recall, withdraw and rescind the order of appointment before its taking effect, but after taking effect in favour of the petitioner, authorities had no power to recall or withdraw the same as the principle of "locus poenitentiae" would apply in the matter---Impugned termination order being in clear violation of relevant law, and against the justice and equity, was set aside---Petitioner was reinstated with back-benefits petitioner was entitled to continue his service in accordance with law. PLD 2002 SC 728 and 2004 SCMR 23 ref. Amjad Hussain for Petitioner. Javed Akhtar Dy. Attorney-General for Respondents.

This writ petition has been filed under Gilgit-Baltistan Empowerment and Self Governance Order, 2009 read with enabling Articles of the Constitution of the Islamic Republic of Pakistan. Briefly stated, the facts relevant to the writ petition are that the petitioner is a resident of Gilgit-Baltistan who after retirement from Pakistan Army was appointed on 3-12-2009 as Secretary District Armed Services Board (DASB) Gilgit by respondent No.1 on permanent basis. According to the appointment order, the petitioner was placed on probation, initially for a period of one year from the date of his appointment extendable for further period of one year but the probation period was not extended further. On 3-12-2010 the petitioner successfully completed one year probation and became permanent employee of Pakistan Armed Services Board. On 14-12-2011 the respondent No.1 through an order dated 14-12-2011 terminated the petitioner from service without assigning any reason or issuing any show-cause notice and by this the respondents violated the terms and conditions provided in the appointment order, hence this petition. Mr. Amjad Hussain, Advocate while appearing for the petitioner contended that the petitioner has been terminated from his regular service without assigning any reason or serving any show cause notice as such the termination order issued being illegal and unheard is liable to be set aside. He relied upon the following case-law. 1. PLD 2002 [SUPREME COURT OF PAKISTAN 728] 2. 2004 SCMR 23 [SUPREME COURT OF PAKISTAN] On the other hand the learned Deputy Attorney-General for the respondents while opposing the contention of the petitioner"s counsel submitted that the petitioner was terminated from service for reasons of misconduct committed by him during probationary period. The services he rendered were not upto the mark and the department was not satisfied with his performance during the period, therefore he was terminated from service. He assailed that the petitioner was on probation as such no notice was required to be issued to him prior to his termination from service under law. We have heard the arguments advanced by the counsel for the parties, minutely perused the record of the case and have gone through the case-laws provided to us. For the sake of convenience we deem it proper to reproduce the appointment order dated 3-12-2009 as under:--- REGISTERED Ministry of Defence PASB Secretariat II/No. 75 Lane-3. St-3 Chaklala Scheme-I Rawalpindi Tele :9281252 No. 0151/4/PASB-2 3 December, 2009 To: Maj. Muhammad Farooq (Rtd.) House No. 2 Street No.1 Wahadat Colony, Jutial Gilgit Copy to: Gilgit-Baltistan ASB Dte Gilgit DASB Gilgit Ministry of Defence (D-24) Rawalpindi Cantt. CMA (ISOs) Rawalpindi Subject: Employment of Secretary DASB Gilgit (B-17). (1) The competent authority has approved your appointment as Secretary DASB Gilgit (B-17) on permanent basis with effect from the date of assumption of the said appointment in BPS-17 (9850-740-24650). The pension if any will be deducted from your pay. (2) You will be on probation for a period of one year from the date of your appointment extendable by order either before or after its expiry by further period not exceeding one year provided that if no order has been made by the day following the termination of either of the aforesaid probationary period, the appointment shall be deemed to be held until further orders. During the period of probation your services are liable to be terminated at any time without notice and without any reasons being assigned thereof. You are liable to be posted anywhere in Pakistan. (3) Your whole time would be at the disposal of the Government unless it is distinctly provided otherwise. You may be employed in any manner required by appropriate authority without claim for additional remuneration. You shall devote you whole time, obey the rules prescribed for the time being for the regulations of the service of cadre to which the post in which have been reemployed belongs. (4) You are directed to report for the above mentioned appointment as early as possible but not later than 2 weeks from the date of receipt of this letter. In case you do not report within the stipulated time your appointment will be considered as cancelled. (5) Your appointment is provisional subject to medical fitness and satisfactory verification of your character and antecedents. Air Cdr Assistant Director General (Raja Muhammad Aslam) Retd. It has clearly been mentioned at para No.1 of the appointment order that the nature of appointment was on permanent basis from the date of appointment. Similarly at para No.2 of the same it has been mentioned that the appointee will be on probation for a period of one year which was made extendable by the order of competent authority after expiry of initial period of probation. According to this condition the petitioner completed his probation period on 2-12-2010, because the initial probation period was not further extended and therefore, it is presumed that the petitioner performed well and due to the reason the authorities did not deem it necessary to extend the probation period for further one year. The respondents passed termination order dated 14-12-2011 without bothering to take the matter on legal footings and terminated the services of the petitioner without observing the formalities required for the termination of services of a permanent employee and the termination order even is silent about any show-cause notice was served on the petitioner before terminating him from service. It is the basic maxim of law that "no one should be condemned unheard" and this requirement of law should have been observed in even contractual jobs. The Superior Courts of the country are unanimous on the point that the right of hearing of such person cannot be taken away in any case before terminating him from service. In this case the authorities have clearly violated the basic principles of law as "no one should be condemned unheard." Secondly the petitioner after getting the appointment letter got the legal right but same was infringed by terminating him from service unheard. The respondents although had authority to recall, withdraw and rescind the order dated 4-12-2009 before its taking effect but after taking effect in favour of the petitioner, the respondents had no authority to recall or withdraw the same as the principle of locus poententia applies in the matter as provided under sections 21/22 of the General Clauses Act, 1897. The petitioner was placed on probation for one year from the date of his appointment and this probation period was further extendable only through written orders of the competent authority but there is no order regarding extension of probation period after expiry of one years" period, hence the petitioner could not be presumed to be on probation at the time when the impugned order dated 14-12-2011 was issued terminating him from service. Thus, the petitioner being a permanent employee could be removed from his job only after observing the codal formalities. The impugned order does not show that the respondents have observed the codal formalities before passing the impugned order. During the course of arguments learned Deputy Attorney-General submitted that the respondents previously served notices against the petitioner and has been removed from the job on the basis of those allegations mentioned in the notices. This contention cannot be accepted for not being the same in accordance with the relevant law/rules provided for removal of a regular employee from his service. Thus we are of the firm opinion that the order dated 4-12-2011 being in clear violation of relevant law, is against the justice and equity hence not tenable. Therefore, the termination order dated 4-12-2011 is set aside; consequently the petitioner is reinstated in his service with all back-benefits. He is entitled to continue his service in accordance with the law. With the above observation this petition is disposed off. File. HBT/67/GB Petition allowed.

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