2011 PLP (C (PLC(CS))

CH. MUHAMMAD TARIQ, J.- Learned counsel for the petitioners contends that the petitioners being fully eligible applied for the post of "Library Clerk" (BS-7) in pursuance of advertisement. Thereafter, on the recommendations of Departmental Selection Committee, Education Department, Sialkot, the petitioners were selected against the vacant permanent posts of "Library Clerk" (BS-7) and were posted at Government College for Women, Daska, vide appointment letter dated 28-10-2008. Order of appointment was passed by the Districts Education Officer (Colleges) Sialkot, being the competent authority. The petitioners are fully eligible for the post who have been performing their duties diligently and honestly but the petitioners were shocked when their services were terminated vide letter dated 10-8-2010 on the ground that the department has committed some irregularities while appointing the petitioners.

2. Learned counsel further contends that the petitioners could not be penalized for a wrong act committed by the department because the petitioners are eligible who have been performing their duties since 28-10-2008 and as a consideration also receiving salaries. Therefore, writ petition be allowed, impugned order be set aside and the petitioners be reinstated in service with all back-benefits.

3. Learned A.A.-G. instructed by D.F.O. (Colleges) Sialkot, has vehemently opposed this writ petition on the basis of written comments submitted by District Education Officer (Colleges) Sialkot, and has contended that the petitioners were appointed against the post reserved for 20% quota of the employees children. It was a serious irregularity of the appointment, therefore, taking action as per direction of department vide letter dated 2-8-2010 the petitioners were terminated on 10-8-2010. This writ petition is without any substance it be dismissed.

4. Arguments heard. Record perused.

5. The order of termination by the District Education Officer (Colleges) Sialkot is re-produced as under: "On the directions of Provincial Ombudsman, Punjab, Hon'ble Judge Sh. Azmat Saeed of Lahore High Court, vide worthy verdict dated 1st December, 2009, and the Secretary Government of the Punjab Higher Education Department vide letter No.SO(CE-VI)5-44/2009 dated June, 2010, the undersigned being the competent authority afforded you the opportunity of hearing under rules on 8-6-2010 and thereupon you failed to justify your appointment as (Library Clerk BS-7 for Government Colleges District Sialkot Higher Education Department. Therefore, taking action as per. instructions of Department vide letter No.SO(CE-VT) 15-22/2009 dated 2 August, 2010, you are hereby terminated from your service with immediate effect under section 17(V) of the recruitment policy, 2004, on the irregularity that you were appointed in service against the post which was advertised for the 20% employees quota. Such appointment tantamount to your ineligibility for the said post."

6. Record reveals that the petitioners were otherwise eligible on the cut off date and they were appointed on the recommendations of Departmental Selection Committee, Education Department, Sialkot, after performing all the formalities. The petitioners joined their duties and started performing their functions and accordingly department has been paying the monthly salaries and other benefits to the petitioners. While all of a sudden on 18-8-2010 their services were terminated simply on the ground that some irregularities were committed by the department during the process of appointment. This argument of the department is misconceived because the department cannot punish the petitioners for the lapses caused by, them and appointing authority is responsible to face consequences of their lapses because the appointment of an employee if made illegal could not be cancelled and instead of taking action against the employee, action must be taken against appointing authority for committing a misconduct by making illegal appointment because of the irresponsible attitude of the department. The petitioners who are otherwise eligible could not be penalized for the act of department as per law laid down by the Hon'ble Supreme Court of Pakistan in case of Province of Punjab through Secretary Agriculture, Government of Punjab and others v. Zulfiqar Ali reported as 2006 SCMR 678. 6-A. As a result of above discussion, this writ petition is allowed, the impugned order of termination of services of the petitioners is set aside. H.B.T./G-81/L Petition allowed.