MUHAMMAD SIDIQ through L.Rs, vs PUNJAB SERVTRIBUNAL, LAHORE and others

ORDER

CH. IJAZ AHMED, J.--- We intend to decide the captioned appeals by one consolidated judgment having common question of law and facts arising out of same consolidated judgment of learned Service Tribunal, dated 25-1-2001.

2. The aforesaid appeals have their own chequered history of litigation out of which the aforesaid appeals arise. The necessary facts out of which the aforesaid appeals arise are that four teachers of Gordon Mission College including appellants were suspended and later on terminated from service on 17-1-1972 by the then Administrative of the College under MLO No,234 read with MLO 255 of 1972. Appellants along with other aggrieved persons filed Constitutional Petition No,1351-S of 1972 in the Lahore High Court which was dismissed on 13-7-1972. Against dismissal order, an L.P.A. No,88 of 1972 was filed which was abated on the enforcement of the Punjab Administrative Tribunal Act, 1974. Appellants and others filed Appeals Nos.685-4/74 and 97/971/75 before the Punjab Service Tribunal which were dismissed on 13-3-1979. Appellants filed review application before the learned High Court with the prayer that the order which was passed in L.P.A. Be reviewed. Thereafter appellants being aggrieved filed petitions before this Court which were converted into appeals which were finally decided and cases were remanded to the Appellate Authority (Director of Education (Colleges) Rawalpindi Division, Rawalpindi) with the direction to examine and decide the question of quantum of punishment of each appellant vide order, dated 5-10-1983. The Appellate Authority in obedience of the direction by this Court had re-examined the whole case and maintained the termination order vide its order, dated 4-10-1984. Appellants being aggrieved filed review petition before this Court against the order, dated 4-10-1984 as evident from para.16 of the present petition/appeal which was also dismissed as time-barred vide order, dated 8-12-1984. The appellants preferred petition before the Chief Minister of Punjab after dismissal of their review petition. The Chief Minister dismissed the same vide order, dated 14-10-1986. The appellants submitted another appeal before the Minister for Education against their termination order on 24- 11-1995 who passed the following order while referring the matter to D.P.I. Colleges).

"P1. Meet the officials and discuss their problem with them and then speak to me."

3. The D.P.I. (Colleges) referred the matter to D.E. (Colleges) Rawalpindi for necessary action.

Director Education (Colleges) Rawalpindi reduced the quantum of punishment of appellants in the following terms:-- "The quantum of punishment was reduced to stopping of two increments and the appellants Mr. Muhammad Siddique Cheema and Prof. S. Stephen were reinstated and allowed to draw their salaries and normal allowance in their respective grades w,e,f, 5-10-1984 till their attaining the age of retirement."

4. The appellants were reinstated in service with certain back-benefits upto their retirement in view of aforesaid order of Director of Education, Mr. Anwar Muhammad Ansari another teacher who had also been terminated by the then Administrator on 17-1-1972 along with the appellants approached the Education Department with the prayer that he may also be reinstated as his case was similar to that of the appellants. After receiving the application the respondent-Department had reexamined the whole case and reinstatement orders of the appellants were withdrawn vide orders, dated 27-5-1998 and 20-6-1998 with the direction to the appellants to deposit the amount drawn by them in the form of salary/allowances etc. In the Government treasury otherwise the same would be recovered from them as arrears of land revenue. Disciplinary proceedings were also initiated under pension rules against Zahoor Abbasi Ex-Director of Education (Colleges) who mislead the department and had reduced the punishment of the appellants. The appellants being aggrieved submitted departmental representation dated 22-6-1996 to the Chief Minister Punjab through proper channel which was not decided. Appellants being aggrieved filed Appeals Nos.1865 of 1998 and 1866 of 1998 before the Punjab Service Tribunal which were dismissed vide consolidated judgment, dated 25-1-2001. Appellants being aggrieved filed Civil Petitions 1183 and 1184 of 2001 before this Court in which leave was granted as mentioned above vide order, dated 24- 10-2002.

5. The learned counsel for the appellants submits that appellants were reinstated under the orders of the competent authority and the appellants had received all the benefits, therefore, respondents had no lawful authority to withdraw the orders through the impugned orders of the Department dated 27-5-1998 and 20-6-1998 and this fact was also overlooked by the learned Service Tribunal while rendering the impugned judgment. He further urges that vested rights had accrued to the appellants, therefore, respondent did not have any lawful authority to withdraw the orders through the impugned orders in violation of principle of natural justice.

6. The learned Law Officer supported the impugned judgment and submitted that appellants had concealed the material facts in their representations filed by them before the Minister concerned.

They had secured the orders by misrepresentation and by way of concealment of material facts under political influence. The respondents were well within their right to withdraw the orders of their reinstatement without show-cause notice as the matter had already been settled between the parties up to the apex Court.

7. We have considered the submissions of learned counsel of the parties and have perused the record. It is better and appropriate to reproduce the operative part of the impugned judgment of the Service Tribunal to resolve the controversy between the parties:- "A question arises whether in the presence of the aforementioned facts borne out by record and admitted by the appellants, was it open to them to have still moved the Education Minister by way of application in November, 1995 (copy Annexure "C" to the Memo. Of appeal) asking for the same relief which stood finally rejected uptil the Chief Minister, as also the Honourable Supreme Court of Pakistan? Plain answer to this question is in the negative. A perusal of the application (Annexure "C") would show clearly that the facts were not faithfully placed before the Minister. Respondent No,2 had no authority to pass orders permitting all the salaries and allowances ignoring completely the past history of the case. No rule of law, they say, would be required to correct a patent illegality.

The illegality came to the notice of the Government when another teacher who was terminated along with the appellants, started claiming the same benefits. Government is always possessed of the authority -to recall orders which are the result of concealment of material facts or where those are procured through deceitful means. In the present case, I am satisfied that the Government had rightly passed the impugned orders dated 27-5-1998 and 20-6-1998 directing the appellants to deposit the amounts drawn by them in the form of salary/ allowances."

8. Mere reading of the aforesaid paragraph clearly shows that the learned Service Tribunal had re- examined the case of the appellants after judicial application of-mind and approved the action of the respondents in view of remedies already availed by the appellants up to this Court and also up to the level of the Chief Minister and this fact was concealed by the appellants by filing their appeal before the Minister concerned as evident from the contents of the appeals filed by the appellants which are at pages 21 to 23 in Civil Appeal No,1391 of 2002. It is an admitted fact that matter has been settled between the parties upto this Court. After the remand order the respondent No,3 had confirmed their termination order, dated 4-10-1984 and thereafter appellants had filed review petition before this Court against order, dated 4-10-1984 which was dismissed vide order dated 8- 12-1984 meaning thereby the matter was finally adjudicated between the parties up to this Court.

In view of these peculiar circumstances, the principle of res judicata is attracted in all force as the law laid down by this Court in the following judgments:--

(i) Muhammad Arshad Saeed's case 2004 SCMR 1033, (ii) Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145.

9. The Director Education (Colleges) had passed the order in favor of the appellants without securing any report from his subordinates or concerned department who had no authority whatsoever under the law to reopen the matter on the well-known principle of past and close transaction as the law laid down by this Court in the following judgments:--

(i) Abdul Majid's case PLD 1982 SC 146; (ii) Asif Ja Siddique's case PLD 1983 SC 46 and Miani's case PLD 1973 SC 17.

10. It is pertinent to mention here that appellants had not attached earlier judgments passed by all the Courts in spite of the aforesaid finding of the learned Service Tribunal. This fact also supports the finding of the Service Tribunal. As the appellants were the beneficiary of the order passed by the Director, therefore, respondents were well within their right to withdraw the same through the impugned orders as the law laid down by this Court in Akhtar Ali v. University of the Punjab 1979 SCM R 549.

11. The appellants had secured the order through the good offices of the Minister concerned as the appeals were filed by them before him. It is pertinent to mention here that Minister has no lawful authority under the Civil Servants Act and rules framed there under to entertain appeals from the appellants. It is no doubt that he had not decided the same himself but sent the same to the D.P.I.

Concerned who had forwarded the same to the Director Colleges as mentioned above. This fact alone is sufficient that the appellants had secured the order under the influence of Minister for Education, therefore, Director, Education (Colleges) had not passed the order after application of independent mind and he had passed the order under the dictation of the concerned Minister, therefore, such order was not sustainable in the eyes of law as the law laid down by this Court in Ghulam Mohiuddin's case PLD 19674 SC 829. It is a settled proposition of law that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order and in such situation principle of locus penitential is not attracted as the law laid down by this Court in Abdul Haque Indihar's case 2000 SCM R 907. It is admitted facts that action of the respondent was upheld by the learned Service Tribunal vide impugned judgment meaning thereby appellants have challenged the varies of the concurrent findings of fact recorded against them. This Court, does not normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 212(3) of the Constitution as the law laid down by this Court in Iftikhar Ahmad Malik's case 2005 SCM R 806. Even otherwise the appellants' counsel has failed to raise any substantial question of law of public importance as contemplated in Article 212(3) of the Constitution.

12. In view of what has been discussed above the appeals have no II merit and the same are dismissed.