ABDUL SALIM vs GOVERNMENT OF N.-W.F.P.

' SARDAR MUHAMMAD RAZA KHAN, J.--- Abdus Salim son of Kamal Din, former C.T. Teacher at Government Middle School, Sherdara, seeks leave to appeal against the judgment, dated 27-8- 2001 of N.-W.F.P. Service Tribunal which had dismissed his appeal against removal from service vide departmental order, dated 13-2-1997.

2. The petitioner was appointed as C.T. Teacher (BPS-9) and posted at Government Middle School, Sherdara, Swabi vide order, dated 25-4-1995. His service book was prepared and he was paid monthly salaries regularly when on 13-2-1997, Divisional Director of Education (Male) Secondary, Mardan Division, Mardan dispensed with his services. His departmental representation having not been responded to, he resorted to the Service Tribunal.

3. The advertisement for the post in question having been published in Daily Mashriq, Peshawar is at page 30 against which the petitioner got interviewed in Government High School No.1, Mardan.

His appointment order as C.T. Teacher is not disputed. The order of removal from service (page 26) reveals the grounds of his termination to the effect that his "appointment was found illegal, ab initio void and against the prescribed rules."

4. So far as the details thereof are concerned, it is nowhere mentioned as to how the appointment was illegal, as to how was it void ab initio and what were the prescribed rules violated in case of his appointment. The absence of such reasons by itself are sufficient to dub the removal as mala fide.

Had there been any specific reason and had such reason been intimated to the petitioner through a show-cause notice, he might have been able to defend himself, but for the shortcomings of his own and not those of the department.

5. So far as the qualifications of the petitioner are concerned, at the time of his appointment/interview on 10-8-1995, he was graduate since April, 1985, B.Ed. Since 1993, M.A. Pushto since 1989 and M.A. Urdu since April, 1992, had a certificate in basic education for Afghan Refugees since August, 1984 and had remained S.V. Teacher in the Organization of Afghan Refugees from November, 1993 to April, 1995. One cannot imagine how was he not qualified for a post of C.T.

Teacher in BPS-9.

6. For any irregularity whatsoever, if committed by the department itself, the appointee cannot be harmed, damaged or condemned subsequently when it occurs to the department that it had itself committed some irregularities qua any appointment. This Court has on numerous occasions held that for the irregularities committed by the department at itself qua the appointment of a candidate, the appointees cannot be condemned subsequently with the change of the heads in the department or on the upper level. Government is an institution in perpetuity and its orders cannot be reversed simply because the heads have changed. Such act of departmental authorities is all the more unjustified when the candidate is otherwise fully qualified to hold the job.

7. In the circumstances, the petition after conversion into appeal is hereby accepted. The impugned judgment, dated 27-8-2001 is set aside and the order of termination from service, dated 13-2-1997 is set aside being void in law and petitioner is hereby reinstated in service. In the circumstances of the case, he shall not be given the back-benefits but his pay fixation shall be done with reference to and in continuation of the date of his initial appointment.