2011 SCMR 1581 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

This order shall dispose of Civil Petitions Nos.1701-L, 1702-L, 1722-L, I732-L, 1733-L of 2010 as they have nexus and the issue raised is similar.

2. Facts briefly stated are that in Civil Petition No.1701-L/10 Mst. Rizwana Kausar was appointed as Oriental Teacher vide order dated 28-1.1.1995 and in the year 2006 her services were terminated on the ground that her appointment order was bogus and irregular. In Civil Petition No.1702-L of 2010 respondent Mst. Riffat Sadiq was appointed as PTC Teacher on 24-8-1995 and in the year 1999 her services were terminated on the sane ground. In Civil Petition No.1722-L of 2010 respondent Mst. Ghulam Batool was appointed as PTC Teacher on 1-8-1995 but her services were terminated after 4 years in the year, 1999. In Civil Petition No.1732-L of 2010 Mst. Nighat Perveen was appointed as PTC Teacher but again in 1999 her services were terminated on similar grounds i.e. that the appointment was bogus and irregular. In Civil Petition No.1733-L of 2010 respondent Mst. Zahida Nasreen was appointed as Drawing Master Teacher on 23-12-1995 but on the same ground her services were terminated on 21-2-2009.

3. These petitions have a chequered history. The respondents challenged their orders of termination from service before various forums and ultimately before the learned High Court in constitutional petitions. In terms of the judgments passed by the learned High Court, respondents were again proceeded against through a regular inquiry and they were served with a charge-sheet, a specimen of which has been placed on record in Civil Petition No.1701-L of 2010 at page 51, which reads as follows:-- "As per finding of the Enquiry Report under E&D Rules, 1975/1999 (6 and 7A), your appointment has been proved bogus/fake and irregular. I, Raja Muhammad Zarait, Authority in the case have decided that an opportunity be given to you for the best interest of justice and issued show-cause notice, where your appointment is genuine or incorrect, and you should be proved herself (sic.). Therefore, you are directed to attend the office of the undersigned on 5-8-2022 (sic) at 10-00 a.m. in person positively along with all relevant documents/record etc. If you do not attend the above said date the one sided action will be taken against you under E&D Rules 1975/1999."

4. Learned Additional Advocate-General submits that the expression "bogus/fake and irregular" appearing in the afore-referred charge-sheet means that their appointments were made by an officer, who was holding the charge of District Education Officer and she did not follow the procedure prescribed in law for the appointments. However, he does not deny that all the respondents possess the requisite academic qualifications; that during their service, there was no complaint whatsoever regarding their performance and that the departmental authorities did not proceed against the respondents for almost a period of 4 years. Learned Law Officer submits that the learned Tribunal in accepting the appeals of the respondents in vogue the principle of locus poenitentiae, which according to him, was not applicable in the instant cases as their initial appointments were illegal and they could not be allowed to perpetuate an ill-gotten gain. Reliance was placed by the learned Law Officer on Muhammad Nadeem Arif v. IGP Punjab, Lahore (2011 SCMR 408) and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others (2009 PLC (C.S.) 161).

5. There is no cavil with the proposition that the principle of locus poenitentiae would not arise in a situation when some benefit is awarded to a person against the declared law and the judgment of, this Court in 2011 SCMR 408, to which reference has been made by learned Law Officer inter alia reiterates this view. However, the said issue would not be relevant in the peculiar facts and circumstances of this case as the grounds which weighed with the learned Tribunal are in accord with the law laid down by this Court, to which reference has been made in the impugned judgment.

6. Having heard learned Law Officer and having gone through the impugned judgment, we are of the view that the charge under which the respondents were proceeded against was that "your appointment has been proved Bogus/Fake/irregular". They were rather vague and non-specific and did not spell out as to whether the respondents committed any fraud, made any concealment or they did not possess the requisite qualification. The charge even did not allege that the appointments were made by an officer who was not competent to make the appointments. In accepting the appeals of the respondents, the learned Tribunal was persuaded by the fact that there was no allegation that the respondents did not qualify for the posts in question or there was any lapse on the part of the respondents. The Tribunal also took note of the fact that their performance during service was never found by the Department to be unsatisfactory. Relying on some judgments of this Court, the Tribunal found that the action taken was uncalled for and not sustainable in law. The learned Law Officer relies on a judgment of this court reported at Executive District Officer (Education) Rawalpindi v. Muhammad Younas (2007 SCMR 1835) wherein the court observed that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically" but the said ratio was laid down in a distinct context and the context was that in the said case, the appellant was a PTC Teacher and procured the appointment order by concealing his dismissal from Pakistan Army. In the instant cases, there is no such concealment or misrepresentation and there was no allegation that they suffered from any disqualification.

7. In the afore-referred circumstances, we are of the view that the impugned judgment is in line with the law laid down by this Court in Secretary, M/o Finance and another v. Kazim Raza (2008 PLC (C.S.) 877), Province of Punjab through Secretary Agriculture Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678) and Secretary to Government of N.-W.F.P. v. Sadullah Khan (1996 SCMR 413) and therefore, is unexceptionable. No question of law of public importance within the meaning of Article 212(B) of the Constitution has been raised either to warrant interference. The petitions lacking in merit are accordingly dismissed and leave refused. S.A.K./E-3/SC Leave refused.