1980 PLP (C (PLC(CS))

Appeal No. 235/107 of 1977, decided on 3rd February 1980. ‑‑ R. 10‑Public Service Commission not consulted‑Penalty order, in circumstances, held, not sustainable. Dr. Habib‑ur‑Rehman v. The West Pakistan Public Service Commission and 4 others P L D 1973 S C 144 ref. M. SALEEM CHAUDHRY (CHAIRMAN): This is an appeal against the order of Secretary, Education, dated 1‑11‑1975 whereby the appellant was removed from service. The review petition made to the Secretary, Education, was not decided.

2. Briefly, the facts of the case are that the appellant was employed as Lecturer in Government Abdul Haq Islamia Inter College, Jalalpur Jattan (Gujrat) on 1‑9‑1971. The College was nationalized on the 1st of September 1972. The appointment of the appellant was made on 1‑9‑1971 but was notified in the official gazette on 4‑9‑1972. On 7‑7‑1973 the services of the appellant were terminated w.e.f. 1‑9‑1972 on the grounds that the appellant was employed after the prohibitory date of 14‑3‑1972. A Writ Petition No. 1791‑S was filed which was accepted by the High Court on the ground that the appellant was not associated with the process by which a finding of facts was recorded and was, therefore, without legal authority and of no legal effect. The appellant was reinstated in service on 24‑8‑1974. On 24‑8‑1974, the appellant was served with a Charge Sheet and proceeded under E & D Rules, 1960. The charge was that he had been appointed after 14‑3‑1972 and that he had concealed the fact from the Government. An Enquiry Officer was appointed to hold the enquiry. After receipt of the enquiry report on 22‑4‑1975, a show‑cause notice was issued. The order of removal from service was passed on 1‑11‑1975. A review petition against the said order was filed on 12‑11‑1975 against the removal from service but no decision was taken on it.

3. The main contention of the appellant is that respondent No. 2 Mr. Saifur Rehman who was similarly appointed and removed has been re‑instated. Therefore, the order is mala fide and arbitrary. Moreover, the mandatory provision of rule 10 of the E & D Rules, 1960 regarding considera tion of the advice of the Public Service Commission has been violated. The appellant further contends that he was never personally heard by any authority.

4. So far as Mr. Saifur Rehman is concerned, he was retained because he was recommended by the Public Service Commission. The case of the appellant is, therefore, not at par with that of Mr. Saif‑ur‑Rehman. It has been held by the Supreme Court in Dr. Habib‑ur‑Rehman v. The West Pakistan Public Service Commission and 4 others (P L D 1973 S C 144), that "all statutory bodies and functionaries, however, are, under an obligation to act in accordance with the law and relevant rules, and a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in the superior Courts". The order is, therefore, to be set aside on the short ground that the provision of rule 10 of the E & D Rules had not been complied with. The appeal is accepted and the order of removal is set aside and the case remanded to the Department for obtaining the advice of the Public Service Commission.