2010 PLP (C (PLC(CS))

SHAUKAT UMAR PIRZADA, J.

This writ petition is directed against orders dated 13-6-2009 and 31-7-2009, passed by respondents Nos.1 and 3, respectively.

2. Brief facts giving rise to this writ petition are that petitioners were appointed in 2002, against various posts by respondent No.2 and their appointments were approved by Tehsil Council vide Resolution No.2, dated 30-6-2003. These appointments were also approved by respondent No.1 on 8-2-2007. Meanwhile the services of the petitioners were regularized. Later-on respondent No.1 issued a direction to respondent No.2 vide letter No. S.O. Admn.III(L.G.)4-171/2007, dated 13-6-2009, that letters No. SOIV(I,G)3-22/2003, dated 8-2-2007 and No.SOIV(LG)3-22/2003, dated 4-6-2007 are fake and bogus, therefore, respondent No.2 should immediately withdraw all orders issued on the basis of these fake and bogus letters and furnish compliance report within three days. Respondent No.3 also sent an identical letter dated 31-7-2009, to respondent No.2. The petitioners whose services have been regularized and performing their duties with dedication and to the best of their abilities are being shown door without any rhyme or reason and for their no fault that too without issuance of even show-cause notice. Hence, this writ petition.

3. Reports and parawise comments were called for from the respondents, who have filed their separate reports and parawise comments.

4. In the reports and parawise comments submitted by respondents Nos.1 and 3, these appointments have been opposed as according to them, the same have been made without observing legal/codal formalities, such as non-observance of ban, advertisement and recommendation of the DPC etc. It has been stated therein that respondent No.2 appointed 119 officials on various posts in BPS-1 to 14 in the aforesaid manner and on the objection of respondent No.3 and DCO, Muzaffargarh, vide letter dated 13-9-2005, services of 76 employees were terminated vide letter dated 4-10-2005 as also of 20 more employees vide letter dated 3-1-2006. However, respondent No.2 requested respondent No.1 vide letter dated 8-2-2007, for the grant of ex-post facto sanction for the remaining 23 employees, which was granted and their services were regularized. Later-on, it was disclosed that letter granting ex-post facto sanction was fake and bogus, therefore, respondent No.2 was directed vide the impugned letters dated 13-6-2009 and 31-7-2009, to immediately withdraw all orders issued on the basis of these fake/bogus letters.

5. Respondent No.2 in his report and parawise comments has opposed the stance of respondents Nos.1 and 3 and has justified the appointments of the petitioners.

6. Counsel for the petitioners contends that the appointments of the petitioners were approved by the Tehsil Council vide its resolution dated 30-6-2003, which can only be modified or altered by the District Government or the Chief Minister under section 70 of the Punjab Local Government Ordinance, 2001. He has further stated that the employees terminated by respondent No.2 on the direction of respondent No.1, challenged these orders through Writ Petition No. 5154 of 2007, Writ Petition No.4109 of 2008 and Writ Petition No.2322 of 2008, which were accepted on 23-6-2009 and consequently, their termination orders were set aside and they were reinstated in service. He has further stated that the respondents preferred C.P. No.2125 of 2009, in the honourable Supreme Court of Pakistan against order dated 23-6-2009, which was dismissed on 31-12-2009. He has placed reliance on these judgments and prayed for acceptance of the instant writ petition.

7. The learned A.A.-G., while representing respondents Nos.1 and 3, has opposed the writ petition and controverted the contentions of the counsel for the petitioners.

8. Counsel appearing on behalf of respondent No.2 has supported the contentions of the counsel for the petitioners and stated that the petitioners are still employees of respondent No.2, they are continuously performing their duties and respondent No.2 although willing to pay them their salaries, is unable to do so due to restraint order of respondents Nos.1 and

3. He has further contended that the petitioners are eligible and qualified for holding the posts against which they are working.

9. I have heard the learned counsel for the parties and perused the record.

10. As per respondent No.2 the petitioners are eligible and qualified and their appointments were made after fulfilling of the codal formalities, therefore, in view of their performance, their services were later on, regularized with the approval of respondent No.1. Learned counsel for respondent No.2 maintains that the petitioners are still the employees of respondent No.2 and they are performing their duties regularly but respondent No.2 is unable to pay them salaries due to the restraint imposed by respondents Nos.1 and

3. When asked from the learned A.A.-G. about the eligibility of the petitioners to hold the posts, he could not deny their eligibility. It is very unfortunate that the petitioners who are low paid employees, have been deprived of their salaries despite the fact that they are in service and performing their duties regularly. This is nothing but cruelty on the part of the respondents, who are busy in blame game without realizing the agony and hardship being faced by the families of the petitioners due to non-disbursement of their salaries, which act of the respondents is deprecated in strongest terms. Even otherwise, the case of the petitioners stands on much better footings than those whose services were terminated by respondent No.2 but were reinstated through the order dated 23-6-2009, passed by this Court, which was upheld by the honourable Supreme Court. Without prejudice to the stance of respondent No.2 qua the petitioners, the impugned directions of respondents Nos.1 and 3 are hit by the principle of locus poenitentiae and this view is supported by the case law titled Dr. Nighat Bibi, Physician General Medicine PIMS, Islamabad v. Secretary, Ministry of Health, Government Pakistan Islamabad and others 2009 SCMR 775 and relevant portion is as follows:

"... Secondly this Court has held in numerous verdicts that the Government cannot take benefit of its own illegalities. If the competent authority was of the view that some higher authority had no jurisdiction, it would have shown the courage to disobey the order. Once it is not done, the step so taken cannot be subsequently retraced by the Government if the incumbent otherwise was eligible for the benefit so granted. Nobody can doubt the eligibility of the petitioner keeping in view her past service record and qualifications." In addition to that reliance is also placed on the judgment dated 31-12-2009, passed by the honourable Supreme Court whereby the employees terminated by respondent No.2 were reinstated by this Court, which order was impugned by the respondents but upheld by the honourable Supreme Court in the following manner: "Having heard learned Law Officer and having gone through the impugned judgment, we find that respondents were appointed against various posts in BPS 1, 2, 3, 5 and 7 by the Competent Authority and they were duly confirmed; that neither the ground of political pressure was taken in the comments filed before the High Court nor it was pleased that the High Court had no jurisdiction in terms of Article 212 of the Constitution. On Court's query, learned Law Officer does not deny that they were qualified to be appointed against the posts they were appointed and further that they have now completed a period of more than 5 years in service. In view of the afore-referred background particularly the fact that all the respondents were qualified against the posts they were appointed; that they have completed their service much beyond the prescribed period of probation, we are not minded to interfere in this matter in the exercise of discretionary jurisdiction. The petition lacking in merit is accordingly dismissed and leave refused." As pointed out above, the petitioners are still in service and performing their duties regularly, therefore, their case stands on ,much better footing than those who have been reinstated by the courts, as such withholding of the petitioners' salaries by the respondents under the present compelling economic conditions, is not only illegal, unjust but also cruel, hence, not sustainable. In view of what has been discussed above, this writ petition is accepted, impugned orders/letters dated 13-6-2009 and 31-7-2009, are set aside and the respondents are directed to disburse up-to-date salaries, including arrears, to the petitioners. No order as to costs. H.B.T./M-389/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.