MUHAMMAD ZAHID IQBAL and others vs D.E.O., MARDAN and otherss

' SARDAR MUHAMMAD RAZA KHAN, J.--- All the petitions in hand, involving common questions of law and fact are taken up together to be decided through this single judgment.

2. The services of the petitioners holding different posts of PTC, CT, PET and TT Teachers etc., in Education Department of N.-W.F.P. Were terminated on different dates in the year 1997. They resorted to the learned N.-W.F.P. Service Tribunal Peshawar on the strength of Hameed Akhtar Niazi's case 1996 SCM R 1185 claiming similar treatment which had been meted out to other civil servants who had been earlier reinstated into service by the Tribunal. After hearing the parties at length, the learned Tribunal dismissed all the appeals vide its judgment, dated 11-6-2005 and hence these petitions.

3. Learned counsel for the petitioners seriously challenged the stance taken by the authority that the appointments of the petitioners were politically motivated. The learned counsel while placing reliance on numerous judgments of this Court advanced the argument that if once the irregularity or illegality is committed by the department itself, it cannot turn around and reverse its own order taking benefit of its own illegalities.

4. This view was negated by the learned counsel for the department on the strength of two Division Bench judgments rendered by this Court in C.P.S.L.As. Nos.274 and 323 of 2004 on 31-10-2003 and C.P. No,96-P of 2002 on 5-11-2003; both by the same learned Bench. The crux of the aforesaid judgment was that an ill-gotten favor by a civil servant through illegal means should not be endorsed and perpetuated by the Court. This needs to be discussed in some detail.

5. The factum of illegal appointments allegedly obtained through illegal means of using political pressure etc. And the terminations based thereon, has remained a subject of close discussion by this Court which, for the first time, in Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCM R 413 held the view that the Government cannot be allowed to take advantage of its own lapses and illegalities in terminating the service of the Civil Servants provided they were otherwise qualified to hold such posts. This view of the Full Bench of this Court was subsequently followed by numerous Full Benches of this Court.

First in series was a Full Bench judgment in Syed Sikandar Ali Shah's case 2002 SCM R 1124 where, otherwise, qualified civil servants, were reinstated despite irregularities and lapses, because, those were committed by the department itself.

6. The view consistently remained followed in another Full Bench judgment in C.Ps. Nos.455 to 457 and 461-P of 2001, decided on 13-10-2003. In the case of Sui Southern Gas Company Limited PLD 2003 SC 724, a larger Bench consisting of five Honourable Judges of this Court, reiterated the above view maintaining the earlier view of this Court in case of Sadullah Khan (ibid). Again in WAPDA v. Abbas Ali Malano and another 2004 SCM R 630 the same disapproval of Government action was reiterated particularly in case of appointees wl'o otherwise fulfilled the requisite qualifications for the appointment. The judgment in Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCM R 303 by another Full Bench can also be referred to in this behalf. The above view is followed in Muhammad Shoaib's case 2005 SCM R 85 where the majority followed the consistent view as discussed. One learned Judge no doubt gave a dissenting view but the majority verdict consistent with the view followed by this Court since 1996 had to be maintained. The two judgments relied upon by the learned counsel for the Government earlier referred to in some portions of this judgment are also rendered by the same Honourable Judge who gave a dissenting view in Muhammad Shoaib's case (supra). We do honour views of the Honourable Judge but the principle enunciated by numerous Full Benches and one larger Bench of this Court has to be followed and maintained.

7. Such principle, in nutshell and consistently declared by this Court is that once the appointees are qualified to be appointed, their services cannot subsequently be terminated on the basis of lapses and irregularities committed by the department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts only when the appointees lacked the basic eligibilities, otherwise not.

8. The aforesaid view if applied to the present cases, the petitioners, we are afraid, cannot draw any benefit there from because at the time of their initial appointments, they lacked basic qualifications, requirements and eligibilities. They were appointed as PTC, CT, PET and TT Teachers in the department but they lacked the pre-qualifications and training courses, CT certificates and junior diploma in physical education as pre-requisites for the posts aforesaid. It is obvious that in the circumstances, they could not take advantage of the conditional view taken by this Court.

9. Most of the petitioners had initially resorted to Peshawar High Court. Their writ petitions were accepted subject to certain conditions of re-advertisement and interviews in open competition.

The petitioners did not either participate in such competition or could not qualify and hence were rightly dislodged by the learned Tribunal. Numerous Teachers appointed against their posts for the last so many years have not been impleaded at all.

10. The services of the petitioners were terminated in the year 1997 but they resorted to the Tribunal, under section 4 of the N.W.F.P. Services Tribunal Act, 1974 with a delay of five years or more. There are one or two exceptions but their delay was also of more than three years.. Their claim that such delay ought to have been condoned, is totally unjust because such condition is highly unprecedented, at the first place and highly unjustified, at the other, so as to jeopardize the interest of those incumbents who are equally in large number and who have not been impleaded at all.

The learned Tribunal, in the circumstances, rightly declined to condone the delay.

11. The upshot of the above discussion is that the petitioners have no merit in their petitions, which are dismissed and leave to appeal refused.