2008 PLP 598 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment, dated 13-7-2002 passed by the Punjab Service Tribunal, Lahore, whereby in appeal filed by the appellant against the order of his removal from service under section 3 of Punjab Removal from Service (Special Powers) Ordinance, 2000, was partly allowed with conversion of his removal into compulsory retirement.

2. Leave was granted in this appeal vide order, dated 8-3-2005 as under:-- "As to whether department discriminated the petitioner because two of his colleagues namely, Sheikh Saeed Ahmad and Ahmad Waqar, District Deputy Attorneys were also appointed in the manner in which the petitioner was appointed and according to him they are still in service of Government of Punjab. It is also pointed out that one of them Ahmad Waqar who was not domiciled of the Province of Punjab has been appointed on relaxing this condition by the Government." The appellant was appointed as Deputy District Attorney (BPS-17) in 1987, on the direction of the Chief Minister of Punjab, in exercise of the powers under section 23 of Punjab Civil Servants Act, 1974 and in relaxation of rule 23 of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974. The appellant was served with the charge-sheet containing the following allegations: "That you were found to have been appointed or promoted on extraneous grounds in violation of law within the meaning of section 3(c) of the Punjab Removal from Service (Special Powers) Ordinance, 2000. For the said omission and commission on your part, you are liable to disciplinary action, which may involve imposition of one or more penalties prescribed in section 3 of the said Ordinance." In consequence to the departmental inquiry, the appellant was removed from service by the competent authority on the ground that his appointment in relaxation of rules was illegal because the rules envisaged, the direct recruitment of 50% posts of Deputy District Attorney, on the basis of recommendation of Punjab Public Service Commission whereas the appointments against the remaining 50% posts were to be made by promotion amongst the Assistant District Attorneys and Chief Minister was not empowered to relax the rules for direct appointment of Deputy District Attorney without the intervention of Punjab Public Service Commission. However, the Tribunal in the light of recommendations of Inquiry Officer and taking into consideration the length of service of appellant as Deputy District Attorney for a period of about 14 years with clean service record, converted the penalty of removal from service awarded to him into compulsory retirement.

4. The appellant in person has contended that the post of Assistant District Attorney (BPS-16) was also required to be filled on the basis of recommendations of Punjab Public Service Commission under the rules and his two colleagues namely, Messrs Sheikh Saeed and Ahmed Waqar, were initially appointed as Assistant District Attorney (BPS-16) in relaxation of rules by the Chief Minister who were subsequently promoted as Deputy District Attorney but department on promulgation of Punjab Removal from Service (Special Powers) Ordinance, 2000 in departure to the principle of equality and equal treatment before law as envisaged in Article 25 of the. Constitution adopting the formula of pick and choose, regularized the appointments of the above-named two officials whereas proceeded to terminate the service of the petitioner after he had rendered satisfactory service for a period of about 14 years as Deputy District Attorney without any lawful justification. The learned Assistant Advocate-General on the other hand, has contended that the above-named two officials, were initially appointed as Assistant District Attorneys (BPS-16) and were subsequently promoted as Deputy District Attorney (BPS-17) whereas the appellant was directly appointed as Deputy District Attorney therefore, his case was distinguishable and he could not claim equal treatment in the matter of regularization.

5. Under the rules on the subject, 1.00% posts of Assistant District Attorney (BPS-16) are required to be filled through direct recruitment on the basis of recommendations of Punjab Public Service Commission whereas the posts of Deputy District Attorney, are filled with the ratio of 50% through direct recruitment on the basis of recommendations of Punjab Public Service Commission and 50% by promotion, therefore, there would be no distinction in the appointment as Deputy District Attorney (BPS-17) or Assistant District Attorney (BPS-16) made in relaxation of rules and the case of above-named two officials who were appointed as Assistant District Attorney in similar manner in relaxation of rules by the same authority would not be distinguishable to the appellant and consequently the different treatment meted out with the appellant in the similar situation and alike circumstances, was discriminatory. The concerned authorities in the Government of Punjab having not taken any action against the appellant at any stage prior to the promulgation of Punjab Removal from Service (Special Powers) Ordinance, 2000 have impliedly regularized his service, therefore, retracing the steps after about 14 years on the promulgation of above Ordinance, was neither in good faith nor bona fide. The learned Assistant Advocate-General has not been able to convince us that the Ordinance in question could be made applicable retrospectively to the transactions past and closed. 5-A. There is no cavil to the proposition that the appointment in departure to the rules is against the policy of law but notwithstanding the legal defect in the initial appointment, the principle of locus poenitentiae would not permit the competent authority to undo an appointment after such a long time on the ground that the appointment was in violation of rules and remove the incumbent from the office. The Tribunal without adhering to the principle of equality and equal treatment before the law as enshrined in Article 25 of the Constitution that the persons placed in similar situation in the alike circumstances, cannot be dealt with differently in departure to the rule of fairness and equal treatment, disposed of the appeal of the appellant with conversion of penalty of removal from service awarded to him into compulsory retirement. The Tribunal also did not attend the pivotal question regarding the retrospective application of the Ordinance to the transaction past and closed.

6. In the light of above discussion, we being of the view that the appellant was discriminated and was not dealt with fairly, set aside the judgment of the Tribunal as well as the order of removal of appellant from service passed by the competent authority and direct his reinstatement in service without back-benefits. This appeal is accordingly allowed with no order as to costs. S.A.K./T-12/SC Appeal accepted.